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
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
be affirmed and it was affirmed Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset deceased Plaintiffs versus Edward Nosworthy Defendant WRit of Error to Reverse a Judgment in B. R. upon a Special Verdict in Ejectment by Hitchins the Lessee of Nosworthy against Sir William Basset Defendant for the Mannor of Lanrock and other Lands in Cornwall wherein upon Not Guilty pleaded and a Trial at Bar the Jury find That Sir Henry Killegrew was seized in Fee of the Lands in question and on the 12th of November 1644. made his Will in writing which follows in these words I Henry Killegrew c. and so they set forth the Will whereby Sir Henry Killegrew devised the Premisses to Mrs. Jane Berkley his near Kinswoman for Life with Remainder over to Henry Killegrew alias Hill Sir Henry's Natural Son in Tail and makes Mrs. Berkley sole Executrix They further find that after the making of that Testament and before the time when c. viz. about the Feast of St. Michael in the Year 1645. Condidit fecit aliud Testamentum in scriptis sed quid fuit content ' in eodem ult ' mentionat ' Testamento vel quale fuit purportum sive effectus inde juratoribus praed ' non constat And that Sir Henry on the 29th of September 1646. died seized of the said Lands that Mrs. Jane Barkley Devisee of the said Will in 1644. by Lease and Release conveyed to Mr. Nosworthy's Father and that the Father died in 1684. that Mr. Nosworthy is Son and Heir to him that Sir William Basset is Cosin and Heir to Sir Henry viz. Son and Heir of Elizabeth Basset Daughter and Heir of Sir Joseph Killegrew elder Brother of Sir Henry the Testator that Nosworthy the Lessor of the Plaintiff entred and made the Lease in the Declaration c. But upon the whole Matter whether the Said Testament made in writing 1645. was a Revocation in Law of the said Devise of the said Lands to Mrs. Berkley they are ignorant and pray the Judgment of the Court Et si And upon this Judgment was given for the Plaintiff in the Ejectment And now it was argued That the Judgment was Erroneous that this last Will could not be taken to be a duplicate of the former but must be deemed a Revocation that no Will is good but the last that every Will is revokable till death that the making of another doth import a Revocation of all former ones tho' it be not so expresly declared in writing for it must be the last or nothing that this Conveyance by Will was anciently a Priviledge by the Civil Law for People in Extremis who had not the time or assistance necessary to make a formal Alienation and chiefly intended for Military Men who were always supposed to be under those Circumstances and therefore the Ceremonies and number of Witnesses required of others were dispensed with as to Soldiers but now the Rules for Military Testaments as they are called are allowed in most Cases that as to Lands by our Law was a Priviledge only given to some Boroughs and Places within the Kingdom and particular Custom gave the liberty of disposing Lands or Houses by Will and that by nuncupative Will or Parol without writing so is Bracton lib. 4. fol. 272. Fleta lib. 5. cap. 5. Potest legari catallum tam hereditas quam perquisitum per Barones London Burgenses Oxon 1 Inst 111. that then came the Statute of Hen. 8. and impowers a Devise by a Man's last Will and Testament in writing but still 't is by his last Will. And so is Littleton sect 168. If divers Wills the latter shall stand and the others are void 1 Inst 112. In truth 't is plain Law the first Grant and the last Testament In Swinb 1 part sect 5. p. 14. no Man can die with two Wills but he may with divers Codicils and the latter doth not hinder the former so long as they be not contrary Another difference there is between Wills and Codicils If two Testaments be found and it can't be known which is first or last both are void but the latter countermands the first tho' there be a Clause in the first that it shall not be revoked and tho' an Oath were taken not to revoke because the Law is so that the very making of a latter doth revoke the former So is Liuwood's Provincial ' de Testamentis Justice Dodderidge's Office of Executor published by Wentworth 29. A verbal Will revokes a former written Will Forse and Hembling 4 Rep. 60 61. Plowd 541. Perkins sect 178 179. and sect 478. The 2 Hen. 5.8 is full to this purpose There 's an Action by an Executor against two Executors and they plead a Testament whereby they are made Executors and the Plaintiff replys that he afterwards made another and himself Executor and held that by the second the first became void Now the meaning of these Books cannot be that a Will expresly revoking is the only Will that can make a Revocation nor is it that a Contrariety or Repugnance between the one and the other is necessary to make a Revocation for tho' there be no new Will made yet a Revocation may be by word of Mouth as 2 Cro. 49.115 1 Cro. 51.3 Cro. 781. nay a void Bequest shall revoke a Will so shall a Deed that hath no effect as Feoffment without livery a Devise to J.S. or to a Corporation when there is no such will do it so that 't is not the Contradiction between the disposal which revokes for that which is no disposition at all will do it wherefore the meaning of the Authors cited is somewhat else and it can only be this That there is somewhat particular in a Will to that Instrument of Conveyance more than to any other that even the making of a new Will is a sufficient Revocation the words are plain by the making a new Will the former are all destroyed for there can be but one last And when a Man makes and declares a new Will that new Will must be presumed to contain his whole Mind concerning the disposition of his Estate declaring his Will imports thus much and excludes all other When a Man would alter part of his Will there 's a proper Instrument for it called a Codicil which is known in the Law as well as that of a Will here 's nothing found of a reference to the former to judge it otherwise would confound the use of Wills and Codicils and the difference between them 'T is true that a Man may make partial Wills of several parts of his Estate and all may stand together but then they must be declared to be Wills concerning particular things and they are but several pieces of the same Will tho' written in different Papers but then in pleading one of them you must not generally say he made ult ' voluntatem but ultimam voluntat ' of such a thing but here 't
is aliud testamentum i.e. a general Testament The 2 Rich. 3. fol. 3. is directly thus The Defendant pleads one Will the Plaintiff replies another and exception taken because he did not traverse the former but held needless to do so quia per ult ' testamentum ut placitatur generaliter primum testamentum revocatur in omnibus and it cannot be pretended that this might be the same Will written over again for if so it could not be aliud it would be the same these are not quibbles upon words for can it be said that this is a Devise by the last Will of Sir H. when there 's another Nor is it an Objection that the Contents do not appear for the Will belongs not to the Heir to keep and consequently not to shew in pleading he is not bound to a profert 't is enough that there was a subsequent Will And as the latter may confirm or be consistent with the former so it may not be so and the consistency is not to be presumed especially against an Heir at Law and in possession In the Case of Coward and Marshal 3 Cro. 721. the Substance of both are declared and thereby they appeared to be consistent and consequently no Revocation here Eadem mens sic testandi the same intent of disposing his Estate the same way can never be thought to continue for then there had been no occasion of making another Will If this be not a Revocation 't is an act void and to no purpose which is never to be intended Then 't was insisted on That the bare act of making and publishing another Will is a Revocation and the finding of the Contents unknown is void If this be not a Will 't is a Codicil and that is contrary to the finding of the Jury for the Verdict mentions a second Substantive independent Will without reference to the former which second Will is a Revocation and therefore 't was prayed that the Judgment should be reversed It was argued on the other side in behalf of Mr. Nosworthy That this was no Revocation that here had been a great stir about nothing for that nothing appeared against his Title that a Man may make a Will of several things at several times and they both shall stand that a deliberate Will being made the Contents whereof are known shall never be revoked by that which is not known nothing can be judged upon that which doth not appear and consequently it can never be judged to be a Revocation Here 's another Will and nothing is given by it nothing is found to be given by this subsequent Will The form of entring the ancient Judgments was Quibus visis lectis auditis per Curiam plene intellectis now what is here read to make a Revocation 2 Rich. 3. fol. 3. is with the Judgment for there 't is replied that he made another Executor there are the Contents pleaded sufficient to maintain his Count and answer the Defendant's Bar the Book is per hoc quod alius Executor nominatur Then was cited 1 Cro. 51. the Reason given is quia in dubiis non presumitur pro testamento and here being a good Will at the most the other is doubtful 1 Cro. 114 115. Several Wills of several things may be made And the same Book 595. 10 Car. 1. which Refolution Serjeant Maynard in arguing this Case below said that he heard in that Court of Kings Bench 'T is the Subject Matter of the Wills and the Repugnancy which makes the Revocation In this very Case in the Exchequer upon an English Bill 't was held by Hale to be no Revocation 't is in Hardres 375. Coke upon Littleton which hath been quoted Comments upon these words several Devises and if there be no Devise in the second there can be no sense or meaning in it and consequently unless some meaning appear it can never be an Evidence of a change of his Mind as it might be a Revocation so it might be otherwise and he that will have it to be a Revocation must prove it to be such No Man can affirm that every Will must necessarily be a Revocation of a former for the second Will might be of another thing as Goods or of another parcel of Land or in confirmation of the former If in these and many other like Cases a latter Will is no Revocation of a former how can it possibly with justice be concluded that a latter Will without Contents Purport or Effect shall be a Revocation of a former And tho' the Jury have in this Case believed the Witnesses and found that another Will was made it may be of dangerous Consequence to encourage and construe this a Revocation without knowing the Contents for no Will can be secure against the swearing of a new Will if there be no necessity of shewing it or proving what it was For which and other Reasons it was prayed that the Judgment might be affirmed and it was affirmed Sir Simon Leach al' Plaintiffs Versus J. Thomson Lessee of Charles Leach Defendant WRit of Error to Reverse a Judgment given in B. R. upon a Special Verdict on a Trial at Bar in Ejectment brought by Thomson on the Demise of Charles Leach the Special Verdict finds that Nicholas Leach was seized of the Lands in question in his Demesne as of Fee and being so seized 9 Nov. 19 Car. 2. he makes his last Will and thereby devises the Premisses to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to Simon Leach his Brother for his Life and after his Decease to the first Son of the Body of the said Simon lawfully to be begotten and the Heirs Males of the Body of such first Son lawfully to be begotten and for default of such Issue to the second c. and so on to the eighth Sons of all and every other Sons c. and for default of such Issue to Sir Simon Leach his Kinsman Son and Heir of Simon Leach of Cadley in Com' Devon ' Esq deceased and the Heirs Males of his Body and for default of such Issue to the right Heirs of him the said Nicholas for ever Then they find That the Lands in the Declaration and those in the Will are the same that afterwards viz. 10 Apr. 20 Car. 2. Nicholas died seized without Issue of his Body that after his Death the said Simon his Brother and Heir Entred and was seized in his Demesne ut de libero tenemento for term of his Life Remainder to the first Son of the Body of the said Simon the Brother and the Heirs of the Body of such first Son lawfully to be begotten and for default of such to the second c. Remainder to Sir Simon in Tail Remainder to the said Simon the Brother and his Heirs belonging That Simon Leach the Brother being so seized afterwards viz. 20 Aug. 20 Car. 2. took to Wife Anne the Daughter of Vnton Crook that
a Colony or Plantation and that imports rather the contrary and by such Names these Plantations have always gone in Letters Patents Proclamations and Acts of Parliament But whatsoever may by some be said as to Statutes in particular binding there the Common Law must and doth oblige there for 't is a Plantation or new Settlement of English-men by the King's Consent in an uninhabited Country and so is the History of Barbadoes written by Richard Ligon Printed at London 1673. pag. 23. says he 'T was a Country not inhabited by any but overgrown with Woods And pag. 100. They are governed by the Laws of England And Heylin in his Geography lib. 4.148 says The English are the sole Colony there they are called the King's Plantations and not his Conquests and he neither could nor can now impose any Laws upon them different from the Laws of England 'T was argued that even our Statutes do bind them and many of them name these Plantations as English they have some Municipal Rules there like our By-laws in the Stanneries or Fenns but that argues nothing as to the general which shall prevail when the one contradicts the other may be a Query another time By the 22 23 Car. 2. cap. 26. against the planting of Tobacco here and for the Regulation of the Plantation Trade the Governours of those Plantations are once a Year to return to the Custom-house in London an Account of all Ships laden and of all the Bonds c. And they are throughout the whole Act called the King's English Plantations Governours of such English Plantations to some of the English Plantations And Paragr 10. 't is said Inasmuch as the Plantations are inhabited which his Subjects of England and so 't is in 15 Car. 2. cap. 7. sect 5. and in 12 Car. 2. cap. 34. they are called Colonies and Plantations of this Kingdom of England From all which 't is natural to infer That the Rules in case of conquered Places cannot prevail here Conquest est res odiosa and never to be presumed besides 't is the People not the Soil that can be said to be conquered The reason of a Conquerour's Power to prescribe Laws is the Conqueror's Clemency in saving the Lives of the conquered whom by the strict right of War he might have destroyed or the presumed Chance of Subjection which the conquered Prince and People threw themselves upon when they first engaged in the War But this is not pretended to here tho' all the Cases about this Subject were put below stairs Then taking it as the truth is certain Subjects of England by consent of their Prince go and possess an uninhabited desert Country the Common Law must be supposed their Rule as 't was their Birthright and as 't is the best and so to be presumed their Choice and not only that but even as obligatory 't is so When they went thither they no more abandoned the English Laws then they did their Natural Allegiance nay they subjected themselves no more to other Laws than they did to another Allegiance which they did not This is a Dominion belonging not only to the Crown but to the Realm of England tho' not within the Territorial Realm Vaughan 330. says That they follow England and are a part of it Then 't was argued further If 't were possible that it should be otherwise when did the Common Law cease On the Sea it remained in all Personal Respects If Batteries or Wounds on Ship-board Actions lay here Then the same held when they landed there and no new Laws could be made for them but by the Prince with their consent Besides Either the Right of these Lands was gained to the Crown or to the Planters by the Occupancy and either way the Common Law must be their Rule It must be agreed that the first Entry gained the right and so is Grotius de jure Belli Pacis lib. 2. cap. 8. sect 6. and these Lands were never the Kings tho' they afterwards submitted to take a Grant of the King 'T is true in case of War what is gained becomes his who maintained the War and doth not of right belong to that Person who first possessed it Grot. lib. 3. cap. 6. sect 11. But in case it be not the effect of War but only by force of their first Entry it must be considered what Interest they did acquire and certainly 't was the largest that can be for an Occupant doth gain an Inheritance by the Law of Nations and the same shall descend then by the Rules of what Law shall the Descent be governed it must be by the Laws of the Country to which they did originally and still do belong But then supposing the Lands gained to the Crown and the Crown to distribute these Lands the Grant of them is to hold in Soccage and that is a common Law Tenure why are not their Persons in like manner under the Common Law When a Governour was first received by or imposed upon them 't was never intended either by King or People that he should Rule by any other Law than that of England And if it had been known to be otherwise the number of Subjects there would have been very small In these Cases their Allegiance continues and must be according to the Laws of England and 't was argued that ex consequenti the protection and rule of them ought to be by the same Laws for they are mutual and reciprocal unum trahit alterum and that Law which is the Rule of the one should be the Rule of the other besides 't is the Inhabitants not the Country that are capable of Laws and those are English and so declared and allowed to be and consequently there 's no reason why the English Laws should not follow the Persons of English-men especially while they are under the English Government and since the Great Seal goes thither And further a Writ of Error lies here upon any of their ultimate Judgments so says Vaughan 402. and 21 Hen. 7.3 that it doth so to all Subordinate Dominions and tho' the distance of the Place prevents the common use of such Writ yet by his Opinion it clearly lies and he reckons the Plantations part of those Subordinate Dominions Now a Writ of Error is a remedial Writ whereon Right is to be done and that must be according to the Laws of England for the King's Bench in case of a Reversal upon such Writ is to give a new Judgment as by Law ought to have been first given Vaughan 290 291 says It lies at Common Law to reverse Judgments in any inferiour Dominions for if it did not inferiour and Provincial Governments might make what Laws they please for Judgments are Laws when they are not to be reversed It lay to Ireland by the Common Law says Coke 7 Rep. 18. tho' there had been no Reservation of it in King John's Charter Then 't was inferred that the lying of a Writ of Error proves the Laws
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
haberi decrevit and then he adjourns 't is no Argument to say that he was hindred for he might have proceeded in absentia and if the 16th of June be tacked to it 't is longer than the time There needed no formal adjournment for that he is Authorized to proceed in a Summary way 't is no such absurdity to call that a Visitation which was in some sort hindred since notwithstanding the obstruction some Acts were done and more might have been by adjourning to another place 3. Here was no such cause as could warrant a Deprivation it was not one of the causes mentioned in the Statutes which are not directions merely but they are the constituent Qualifications of the Power and Contumacy is none of the causes nay here is no Contumacy at all The Offence of the Suspended Fellows was only a mistake in their Opinions and the Doctors was no more and 't is not a Contumacy for refusing to answer to or for any Crime within the Statutes for there was none of the Crimes mentioned in the Statutes laid to the charge of the Rector if the Crime charged had incurred Deprivation perhaps a Contumacy might be Evidence of a Guilt of that Crime and so deserve the same Censure but Contumacy in not consenting to a Visitation can never be such especially when the consenting to a Visitation is not required under pain of Deprivation 4. Admitting the Visitor legally in the Exercise of his Office that here was cause of Censure that the Cause or Crime was deserving of that Punishment which was inflicted that Deprivation was a congruous Penalty for such an Offence yet t was argued That this Sentence was void for that the Visitor alone was in this Case minus competens judex because his Authority was particularly designed to be exercised with the consent of others which was wanting in this Case This was the same as if it had required the concurrence of some other Persons Extra Colleg ' then that such a concurrence was necessary appears from the words of the Statute his meaning seems plain upon the whole to require it A greater tenderness is all along shewn to the Rector then to the Scholars 't is sine quorum consensu irrita erit hujusmodi Expulsio vacua ipso facto and the Sentence it self shews it necessary because it affirms it self to be made with such consent and it cannot be thought that the Rector should be deprivable without their consent when the meanest Scholar could not Then here 's no such consent for 't is not of the four Seniors but of the four Seniors not Suspended now this doth not fulfil the Command of the Statute for the Suspension doth not make them to be no Fellows a Suspended Fellow is a Fellow though Suspended a Suspension makes no vacancy the taking off of the Suspension by Sentence or by Effluxion of time doth make them capable of acting still without the aid of any new Election and they are in upon their old choice and have all the priviledges of Seniority and Precedency as before If they ceased to be Fellows by the Suspension then they ought to undergo the Annum probationis again and to take the Oaths again In case of Benefices or Offices Religious or Civil Ecclesiastical or Temporal 't is so a Suspension in this Case is only a disabling them from taking the Profits during the time it continues And 't is no Argument to say That their Concurrence was not necessary for that they had withdrawn themselves and were guilty of Contumacy for that a Man guilty of Contumacy might be present if withdrawn from the Chapel he might be in the Colledge or in the University and 't is not found that they were absent and then their Consent not being had the Sentence was void and null and consequently no Title found for the Lessor of the Plaintiff in the Action below It was replied in behalf of the Plaintiff much to the same effect as 't was argued before and great weight laid upon the Contumacy which hindred the observance of the Statutes that by allowing such a Behaviour in a Colledge no Will of the Founder could be fulfilled no Visitation could ever be had and all the Statutes would be repealed or made void at once that tho' this Crime was not mentioned 't was as great or greater than any of the rest that here was an Authority and well executed and upon a just Cause and in a regular manner as far as the Rector's own Misbehaviour did not prevent it and therefore they prayed that the Judgment might be reversed And upon Debate the same was reversed accordingly Note That in this Case there was one Doubt conceived before and another after this hearing The first was If a Writ of Error lay in Parliament immediately upon a Judgment in the King's Bench without first resorting to the Exchequer Chamber but upon perusing the Statute which erects that Court for Examination of Errors it appeared plainly that that Act only gives the Election to the Party aggrieved to go thither that it did not take away the old Common Law method of Relief in Parliament and so hath the Practise been but upon Judgments in the Exchequer Court the Writ of Error must first be brought before the Lord Chancellor and cannot come per saltum into Parliament because the Statute in that case expresly ordains That Errors in the Court of Exchequer shall be examined there and so held in the Case of the Earl of Macclesfield and Grosvenor The other Doubt was raised by a Motion in B. R. for the Court to give a new Judgment upon the Reversal above and insisted on that it ought so to be as was done in the Case of Faldo and Ridge Yelv. 74. entred Trin. 2 Jac. 1. Rot. 267. Trespass and Special Plea and Judgment in B. R. for the Defendant and upon Writ of Error in the Exchequer Chamber the Judgment was Reversed and upon the Record returned into the King's Bench they gave Judgment that the Plaintiff should recover contrary to the first Judgment for otherwise they said the Law would prove defective and a Precedent was shewn in Winchcomb's Case 38 Eliz. where the same Course was taken and the like Rule was made Mich. 1 W. Mar. upon the Reversal of the Judgment inter Claxton vers Swift which is entred Mich 2 Jac. 2. B. R. Rot. 645. the like between Sarsfield vers Witherley 'T was argued on the other side That the Court which reverses the Judgment ought to give the new Judgment such as ought to have been given at first that in the Exchequer Chamber it may be otherwise because they have only power to affirm or reverse for yet in the Case of King and Seutin the Exchequer Chamber gave a new Judgment tho' they cannot inquire of Damages and that is a kind of Execution which must be in B.R. In Omulkery's Case 1 Cro. 512. and 2 Cro. 534. the Court here sends a Mandatory Writ to
of the greatest Members of the House Selden Hollis Maynard Palmer Hide c. that the Earl Marshal can make no Court without the Constable and that the Earl Marshal's Court is a grievance Rushworth 2 Vol. 1056. Nalson's 1 Vol. 778. Spelman in his Glossary verbo Mareschallus seems to say 't was officium primo Servile and that he was a meer Servant to the Constable and gives much such another account of it as Cambden doth and pag. 403. is an Abstract or rather Transcript of all that is in the Red Book in the Exchequer about the nature of this Office and there 't is said that if the King be in War then the Constable and Marshal shall hold Pleas and the Marshal shall have the Amerciaments and Forefeitures of all those who do break the Commandments of the Constable and Marshal and then it was further alledged by the Councel for the Defendant in the Writ of Error that they knew of no Statute Record or Ancient Book of Law or History that ever mentioned the Earl Marshal alone as having Power to hold a Court by himself So that taking it as a Court held before an incompetent Judge a Prohibition ought to go and the Party ought not to be put to his Action after he has undergone imprisonment and paid his Fine since it hath the semblance of a Court and pretends to act as such and if it be a Court before the Earl Marshal alone in case it exceeds the Jurisdiction proper to it a Prohibition lies either by force of the Common-Law which states the boundaries and limits of that Jurisdiction or by force of the Statute of 8 Rich. 2. which is not repealed by the subsequent Law in that Reign and if such Prohibition do lie in any Case that here was cause for it the subject matter of the Articles being only a wrong if any to a private Officer who had his proper remedy at the Common-Law and therefore it was prayed that the Judgment should be affirmed and it was affirmed Smith Vx ' Versus Dean and Chapter of Paul 's London and Lewis Rugle APpeal from a Decree of Dismission made by the Lord Jeffreys the Bill was to compel the Dean and Chapter as Lord of the Mannor to receive a Petition in nature of a Writ of false Judgment for Reversing a common recovery suffered in the Mannor Court in 1652. whereby a Remainder in Tail under which the Plaintiff claimed was barred suggesting several Errors in the proceeding therein And that the said Lord might be commanded to examine the same and do Right thereupon To this Bill the Defendant Rugle demurred and the Dean and Chapter by Answer insisted That 't was the first Attempt of this kind and of dangerous consequence and therefore conceived it not fit to proceed on the said Petition unless compelled thereto by course of Law That Rugle being the Person concerned in interest to contest the sufficiency of the Common-recovery they hoped the Court would hear his defence and determine therein before any Judgment were given against them and that they were only Lords of the Mannor and ready to Obey c. and prayed that their rights might be preserved This demurrer was heard and ordered to stand And now it was insisted on by the Council with the Appellant that this was the only Remedy which they had that no Writ of Error or false Judgment lies for Reversing of a recovery or Judgment obtained in a Copyhold Court that the only method was a Bill or Petition to the Lord in nature of a Writ of false Judgment which of common right he ought to receive and to cause Errors and defects in such recovery or Judgment to be examined and for this were Cited Moore 68. Owen 63. Fits N. B. 12. 1 Inst 60. 4 Rep. 30. is such a Record mentioned to have been seen by Fenner where the Lord upon Petition to him had for certain Errors in the proceedings Reversed such Judgment given in his own Court 1 Roll's Abridg. 600. Kitchin 80. 1 Roll's Abridg. 539. Lanc. 98. Edward's Case Hill 8. Jac. 1. by all which it appears that this is an allowed and the only remedy Then it was argued That in all Cases where any Party having a Right to any Freehold Estate is barred by Judgment Recovery or Fine such Party of common Right may have a Writ of Error if the same be in a Court of Record and a Writ of false Judgment if in a Court Baron or County Court and reverse such Judgment Recovery or Fine for Error or Defect and there can be no reason assigned why a Copyholder especially considering the great quantity of Land of that Tenure in England should be without remedy when a false Judgment is given and the rather for that in Real Actions as this was the Proceedings in the Lord's Courts are according to those in Westminster-hall and now tho' a Common Recovery be a Common Assurance yet it was never pretended that a Writ of Error to Reverse it was refused upon that pretence and if the Lord of a Mannor deny to do his Duty the Chancery hath such a Superiour Jurisdiction as to enjoyn him thereto 'T is the Business of Equity to see that Right be done to all Suitors in Copyhold Courts Fitsh Abridg. Subpena 21. 2 Cro. 368. 2 Bulstr. 336. 1 Rolls Abridg. 373. If an Erroneous Judgment be given in such Court of a common Person 's in an Action in the Nature of a Formedon a Bill may be in Chancery in nature of a false Judgment to Reverse it and Lanc. 38. Tanfield says that he was of Counsel in the Case of Patteshall and that it was so decreed which is much more then what is here contended for and tho' Common Recoveries are favoured and have been supported by several Acts of Parliament yet no Parliament ever thought fit to deprive the Parties bound by such Recoveries of the benefit of a Writ of Error On the other side 't was urged in defence of the Dismission That the Person who suffered this Recovery had a power over the Estate that she might both by Law and Conscience upon a Recovery dispose of it as she should think fit that she hath suffered a Recovery and that it was suffered according to the custom of the Mannor tho' not according to the form of those suffered in Westminster-hall That the suffering of Recoveries in any Court and the Methods of proceeding in them are rather notional then real things and in the Common Law Courts they are taken notice of not as Adversary Suits but as Common Assurances so that even there few Mistakes are deemed so great but what are remedied by the Statute of Jeofailes or will be amended by the Assistance of the Court And if it be so in the Courts at Westminster where the Proceedings are more solemn and the Judges are Persons of Learning and Sagacity how much rather ought this to stand which was suffered in 1652. during the Times of
not against him here 's no Fraud or ill Practise c. Then if the nature of the thing be considered the Demand is of a Right not arising by Agreement of Parties but by Operation of Law if the former Chancery might perhaps construe and enlarge it so as to fulfil the utmost Intention but here her title is the Marriage the Seisin and Death of the Husband And there never was a time when if her Lord had died she could have had immediate Dower for even the Term had been pleadable by an Heir of Law to a Writ of Dower Now what doth give her an Equity against the Respondent Her Claim is by from and under her Husband as having a Right to a Proportion of what he had that is a Right by the Law where is the Equity that should improve or mend this Right Perhaps it must be agreed That if the Husband had just before Marriage made a long Lease on purpose to prevent Dower and the Woman expecting the Priviledges which the Common Law gives to Women married had surviv'd him Equity might have interposed and yet even this was practised by a Reverend Judge of Equity Mr. Serjeant Maynard who made such Lease to his Man Bradford the day before his last Marriage but here is no such Action 't was an old Term created by the old Earl of Warwick As to the Case of the Mortgages The Feme intituled to Dower is let in because the Person who is the Mortgagee hath no Interest but to have his Money and Equity is to execute all these Agreements but never where there is a Purchaser or where the Interest of the Mortgage is assigned to the Heire Between her self and the Mortgagee she comes in place of her Husband and the Husband could redeem and so may the Wife but against a Purchaser she has no more Equity then her Husband had and that is none at all If she hath a Legal Title antecedent to the Purchasers as Marriage and Seisin where there 's no Term standing out that shall prevail and Equity shall not help the Purchaser against her so where the Purchaser hath a Legal Title as by a Term precedent Equity cannot relieve her And whereas it was objected That there was no Case adjudged in Chancery against the Appellants pretence the Answer is plain The Common Law is against it and if no Precedent in Equity the Common Law ought to stand 'T is nothing but Precedent that Consecrates half the Decrees in Equity And no Man will say that ever any Woman was endowed in Equity of a Trust Estate If a Man hath a Term for Ten thousand years and be entirely and properly owner of it tho' the same be equal in value to a Feesimple for the Reversion after it is worth little or nothing yet no Dower can be claimed in Equity nay If the Husband be seized together with another Person and not sole seized yet no Dower even in Chancery can be claimed against the Survivor So that Equity doth not exceed the Rules of Law in advancing the Right of Dower 'T is true unless Fraud be in the Case according to the Case of Nash and Preston in Cro. Car. 190 191. Relief in Equity shall not be given against a Legal Title to Dower yet 't is as true that where the Law doth not give Dower Equity will not unless there be Fraud and Covin used to prevent it and then common Reason enjoyns a Court of Conscience to Relieve If any Allowance had been in the Purchase upon Consideration of the Title to Dower the same would have been a very material Argument but in this Case there was none And therefore 't was prayed that the Dismission might be affirmed and it was so Dominus Rex versus Baden WRit of Error to Reverse a Judgment given in the Court of Exchequer and affirmed upon a Writ of Error in the Councel Chamber before the Chancellor with the Assistance of the two Chief Justices The Case upon the Record was only this One Allen outlaws one Clerk in Debt on a Bond in Mich. 1690. on the Seventh of Jan. 1690. by virtue of a Special Capias utlagatum and inquisition thereupon seizes Clerk's Lands into their Majesties hand In Hillary Term following the Outlawry and Inquisition are certified into the Exchequer and Allen obtains a Lease under a Rent In Mich. 1692. Baden comes and pleads that in Mich. 4 Jac. 2. he recovered a Judgment against Clerk for 1080 l. that in Trinity Term 1691. he took out an Elegit and had a Moiety of the Lands extended and therefore prays that an amoveas manus may be awarded Mr. Attorney replies That the Lands were seized by virtue of the Outlawry and Inquisition long before the Elegit was sued and therefore c. Baden demurs and Judgment for the King It was argued on behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous for that there 's a vast difference between an Outlawry in a Civil and one in a Criminal Process That in a Civil Action 't is only a Civil Process for the benefit of the Party and 5 Edw. 3. cap. 12. the King cannot pardon an Outlawry at the Suit of a private Person that 't is only to help one Subject to his Debt from another that the King hath no Advantage by it and so no need of a Preference by reason of the Prerogative that at Common Law no Man could be outlawed that now it is purely given for the sake of the Plaintiff that the common Practise is to make a Lease or grant a privy Seal to the Party That by this Outlawry the King hath no Interest in the Land he cannot cut down the Trees 9 H. 6.20 that he cannot Plow or Sow but only collect and receive the Profits which arise out of the Land Bro. tit Outlawry 36. tit Patents 3. that the King hath not the possession of the Land which shews it not to be a Forfeiture to the King but it remains the Parties still in respect of Ownership he may make a Feoffment 21 Hen. 7.7 2 Inst 675. Hob. 122. by the Judgment the Lands were bound tho' the Title was not compleat till the Elegit was sued out a monstrans de droit or Petition did lye and now the same Matter may be pleaded 'T was further argued That great Mischief must follow if an Outlawry upon Civil Process may defeat a Judgment that Judgments with release of Errors are taken and used as common Securities that this is most plainly a device to avoid them that this can be no Security if an Elegit may not be sued but prevented by the Party himself for here it is his own default not to avoid this Outlawry by Appearance that no act of the Debtor could alter the Security and there 's no reason why his neglect should that this Contest is between Baden and Allen and not between Baden and the King Allen's Suit was but just begun and this is
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
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
only the signification of a Man's purpose how his Estate shall go after his death and tho' it be solemnly made in writing signed published and attested yet if he do any intermediate Act whereby it must be necessarily inferred that such Purpose and Intention of his did not continue the Consequent must be that what was done before as to such Will is totally defeated and unless it be set up anew by a Republication 't is as no Will. The Case of Mountague and Jeffryes 1 Rolls Abridg. 615. and Moore 429. proves this If a Conveyance at Law shews an Intent different from the Will as to Lands 't will be a Revocation tho' such Conveyance be not perfect to all purposes Hodgkinson versus Wood Cro. Car. 23. 'T is a Revocation tho' the Owner should be in again as of his old Reversion The Case of Lestrange and Temple 14 Car. 2. reported in Sid. 90. 1 Keble 357. is stronger but this is stronger yet because 't is not to the old use but limited in a different manner 't is a qualified Fee and to be determined upon the qualifications taking effect and so cannot be the old Estate and if it were yet 't is a Revocation and there 's no Circumstance in the Case that can direct a Court of Equity to differ from the Law and therefore it was prayed that the Decree of Dismission might be affirmed and it was affirmed John Fox Gen ' Plaintiff Versus Simon Harcourt Arm ' Defendant WRit of Error on a Judgment in B. R. The Case was upon a Special Verdict in an Action of the Case upon an Indebitus Assumpsit for Moneys received to the Plaintiff's use brought there by Harcourt versus Fox which Verdict finds the 37 Hen. 8. cap. 1. intituled a Bill for Custos Rotulorum and Clerkship of the Peace Then they find that 1 Will. Mar. intituled An Act for enabling Lords Commissioners for the Great Seal to execute the Office of Lord Chancellor or Lord Keeper and several Clauses therein concerning this Matter Then they find that John Earl of Clare was by Letters Patents dated the 9th day of July Anno 1 Will. Mar. according to the 37 Hen. 8. made Custos Rotulorum for the County of Middlesex and set forth the Letters Patents in haec verba Then they find that the Office of Clerk of the Peace for this County being void the Earl of Clare by writing under his Hand and Seal dated 19 July Anno primo did nominate appoint and constitute the Plaintiff Mr. Harcourt to be Clerk of the Peace for Middlesex for so long time only as he should well demean himself therein and the Instrument was found in haec verba Then they find him to be a Person resident in the County capable and sufficient to have and execute the Office that he took upon him the execution of the said Office and before he did so he at the Quarter Sessions for the said County in open Sessions took the Oath required by the late Act of this King and the Oath of Clerk of the Peace and did do and perform all things necessary to make him a compleat Officer and that during all the time he did execute the sald Office he demeaned himself well Then 't is found That on the fifth of February Anno tertio the said Earl of Clare was in due manner removed from being Custos and William Earl of Bedford by Letters Patents dated the sixth of February was made Custos according to the 37 Hen. 8. and those Letters Patents are also found in haec verba Then they find an Appointment in Writing dated the fifteenth of February by the said Earl of the said Fox to be Clerk of the Peace for the said County to hold the said Office for and during the time the Earl should enjoy and exercise the said Office of Custos so as he well demean himself therein They likewise find Fox to be a Person capable c. and that he took the Oath and did the other things requisite to qualifie himself for the said Office that he did thereupon enter on the Execution of the said Office and during the time that he executed it he well demeaned himself therein and did take the Fees belonging to the said Office which they found to be to the value of five shillings Sed utrum c. Et si c. Et si c. Upon this Judgment was given for the Plaintiff below And it was now argued for the Plaintiff in the Writ of Error That this Judgment ought to be Reversed And first it was said that whatsoever the Common Law was as to ancient Offices could be no Rule in this Matter Many and most of those were for Life but my Lord Coke says That the Office of Chancellor of England could not be granted to any one for Life because it was never so granted the like of Treasurer So that Custom and nothing else can govern in those Offices But here can be no pretence of its being a Common Law Office for the Common Law knew no such thing as Justics of the Peace to whom they say he is a Clerk That the first Statute which makes Justices hath no mention of Clerk but 't was meerly an Incident some Person of necessity was to officiate in that kind And where he is called the Justices Clerk it can only be that he was one appointed by them to make and write their Records for them and 't is probable that in ancient time he that was their Clerk was Custos Rotulorum and intrusted with the keeping of the Records then it coming to be an honorary thing to be Custos he that was the most eminent for Quality amongst them was appointed to that Trust and then he appointed his Clerk under him For there 's no ancient Statute or Law that empowered the Chancellor to make a Custos but he making out the Commission of the Peace might very well name one of them to be Keeper of the Records and to have the first place amongst them And such Person might very well appoint his Deputy or Servant who in time came to be Clerk of the Peace We have no certain but this is the most probable Account of the thing Then the Statute of 37 Hen. 8. recites That the Chancellor had much perverted the Institution by assuming to make Custos's for Life and so the Clerks of the Peace were for Life likewise The end of that Act was not only to remove ignorant Persons for the Common Law it self would turn any such out of Office if he be not able to perform the Duty of it but the Grants for Life were the great Grievance and therefore to remedy that Mischief the Custos must be appointed by Bill signed with the King 's own hand and at his pleasure removeable and the Clerk of the Peace to be appointed by the Custos and to continue only during the time of the others continuing to be Custos This tho' not
Exception to all Grants for Lives but Credit ought to be given to the Honour Wisdom and Judgment of former as well as present Officers in respect of such Nominations 'till some Misbehaviour shews the Choice to have been ill and when that appears the Persons are removable and then the Inconvenience is likewise removed Here the Jury have found the Plaintiff in the Action below to be able and sufficient and well qualified for the Office and to have done his Duty in the Office while he had it Wherefore it was prayed that the Judgment might be affirmed and it was affirmed Henry Lord Bishop of London and Peter Birch D.D. Plaintiffs versus Attorney General pro Domino Rege Regina WRit of Error to Reverse a Judgment given in B. R. in a Quare Impedit The Case upon Record was thus The Declaration sets forth the Act of Parliament which Erects and Constitutes the Parish of St. James's within the Liberty of Westminster out of the Parish of St. Martyns c. prout that by force and virtue of that Act the said Parish was made and the District therein named became a Parish and Dr. Tennison Rector of the same that he was afterwards Rite et Canonice consecratus Episcopus Lincoln ' and that thereby the said Church became void and thereupon it belonged to the King and Queen to present a fit Person ratione Prerogative sue Regie Corone sue Angl ' annex ' and that the Defendants hindred c The Defendants crave Oyer of the Writ and it is general Vic' Com' Midd ' salut ' precipe Henric ' Episcopo Lond ' Petro Birch Sacre Theologie Professor ' quod juste et sine Dilatione permittant nos prefentare idoueam personam ad c. que vacat et ad nostram spectat dâ—mationem Et unde pred' Episcopus et Petrus nos injuste c. And then they pray Judgment of the Writ and Declaration because that between the Writ and Declaration there is a material variance iâ— hoc viz. quod ubi per Breve pred' pred' Dom ' Rex et Regine â—â—â—itulant se ad Donationem pred' c. pleno Jure tamen per Narr ' pred' iidem Dominus Rex et Domina Regina intitulant se ad c. Sec â—â—â—tione Prerogative sue Regie Corone sue Anglie annex ' unde pro variatione pred' inter Breâ—e et Narr ' pred' they pray Judgment of the Writ and Declaration aforesaid and that the said Writ may be quash'd c. The Attorney General Demurs and the Defendants Joyn and there 's Judgment to answer over Then the Bishop Demurs generally and Mr. Attorney Joyns and Dr. Birch pleads that he is Incumbent and then sets forth the Statute of Hen. 8. concerning Dispensations and that after Dr. Tennison was elected Bishop the Archbishop granted to him a Commendam Retinere with power to take and enjoy the Profits to his own use by the space of seven Months That this Commendam was confirmed under the Great Seal according to the Statute and the said Dr. Tennison did enjoy the same accordingly c. Mr. Attorney Demurs and Dr. Birch joyns in Demurrer and Judgment was given for the King c. And now it was argued in the first place That the Plea in Abatement was good and if so all that followed was Erroneous And to make that Plea good it was said that there is a variance between the Writ and Declaration that they are founded upon several Rights that upon arguing the Merits of the Cause it must be owned to be so on the other side That no Argument can be urged to maintain the Declaration in general but the Jure Prerogative and consequently it must be different from the Title or Interest pleno Jure They have said below that tho' the King's Interest is bound by Statutes yet his Prerogative is not This Distinction of the Rights must be allowed or else the main Judgment is not justifiable and that there is such a Distinction appears in Gaudy and the Archbishop of Canterbury's Case in Hob. 302. by the Presentation there recited which was drawn by the King's Counsel 't is ad nostram Presentation ' pertinet sive ex pleno Jure sive ratione Prerogative By Bracton 415. If the Writ be founded on one Right and the Declaration on another the Writ must be abated as in Case of Executors and Corporations In some Cases it must be agreed That the Writ may be General and the Count Special but none of those Cases will reach to this where several Rights are pretended 'T is no Objection to say That there is no Writ in the Register for this for that 's rather an Argument against their Prerogative Besides this Prerogative was never allowed till Dyer's time and in the old Books 't is denied where the King was not Patron In the Register 30. is a Writ Special quod permittant nos presentare idoneam personam ad Ecclesiam de c. que vacat et ad nostram spectat Donationem ratione Archiepiscopatus Cant ' nuper vacantis in manu existentis And another Sine titulo ut de jure and that is General ad nostram spectat Donationem Another Writ is there Ratione custodie terre et heredis upon a Tenure in capite And another Ratione foris facture unius et ratione custodie terre et heredis alterius per servitium Another Writ pro Domino Rege et aliis conjunctim Register 32. is another such by reason of the Vacancy of the Archbishoprick 'T is not an Answer That the Writ of Waste is General and the Count Special because that is not en auter droit Then it was said that it is true That where another Writ cannot be had a General Writ and Special Count are allowable but here a Special Writ might have been sued And there were cited the 1 Inst. 26 53 54 235 344 3 Cro. 185 829. And as to the Queen and the Archbishop of York's Case 3 Cro. 340. that doth not come up to this Case for tho' the Writ were General and the Count in Right of the Dutchy of Lancaster yet both were as Patron pleno jure and the Count did only shew how the Plaintiff came to be Patron but here they were several Rights as dictinct as a Claim by a Man singly and a Claim as Executor or in jure Vxoris In Answer to this were cited the Presidents in Mich. 31 Hen. 6. Rot. 65. Pasch 9 Eliz. Rot. 1408. or 1410. Hill 13 Car. 1. Rot. 486. Trin. 31 Car. 2. Dominus Rex versus Episcop ' de Worcester Writ General and Count Special Rastal 528 530. Then it was argued upon the Merits of the Cause as it was appearing upon the Declaration and Plea and Demurrer and therein three Queries were made as had been by the King's Counsel below 1. If the King hath any Prerogative to present upon an Avoidance by Promotion where neither himself nor the Bishop was Patron but
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
All their Arguments will hold as well to a Month Week or Days surviving of the Mother as to this of two Years and therefore it must be thus construed to be her Intent that the Devises over should take effect if the Child should not live to an Age of Maturity and Power of Disposition And as to the pretence of the Child's starving in the mean time there neither is nor can be any weight in that for the Interest and Produce of the whole during all that time must remain and be to and for the benefit of the Child Wherefore upon the whole Matter 't was prayed that the Decree should be affirmed and it was affirmed Philip Jermin and Sarah Vxor ejus ' Plaintiffs Versus Mary Orchard Widow Defendant WRit of Error to Reverse a Judgment of Reversal given in the Exchequer Chamber upon a Judgment given in the Kings Bench for the Plaintiffs in an Action of Trespass for the mean Profits after a Recovery in Ejectment and Possession had thereupon The Case was this upon Record The Plaintiffs declare that the Defendant 1 Sept. 1672. their Close c. vi armis c. did break and upon the Possession of the Plaintiff did enter and the Plaintiffs from their Possession did expel and remove and them so being removed and expelled for a long time viz. from the said 1 Sept. 1672. to the time of exhibiting the Bill viz. 6 May 1685. did hold out from the same by which they lost the Prosits thereof c. Et al' Enormia c. The Defendant by Plea takes Issue as to the Force and Issue thereon and as to part of the Trespass pleads the Statute of Limitations and as to the residue of the Trespass pleads that Sir William Portman made a Lease to one Trowbridge for 1000 years and by mesne Assignments derives a Title down to Thomas Nicholas and that he in his Life time by Indenture assigned to the Defendant The Plaintiffs Reply and as to the first part of the Plea viz. of the Statute of Limitations they demur and as to the other part of the Plea they tender a Traverse and deny that Thomas Nicholas did assign the Premisses to the Defendant The Defendant joyns in Demurrer as to the first part of the Plea viz. the Statute of Limitations And as to the other part she takes Issue upon the Traverse which Issue is joyned and a Venire awarded tam ad triand ' the two Issues quam ad inquirend ' de dampnis upon the Demurrer The Jury find that Thomas Nicholas was possessed in manner as the Defendant in her Plea hath alledged and that he did make Seal and as his Deed deliver the Indenture in the Plea mentioned which said Indenture follows in these words and so set forth the whole in which after a Recital of the Lease and a Deducement of the Title down are these words viz. The said Thomas as well for and in consideration of the natural Love and Affection which he beareth to the Defendant his Grand child as for other good Causes and Considerations hath granted assigned and set over and by these Presents doth grant assign and set over unto the said Mary her Executors Administrators and Assigns all the said Cottage Barn and Lands and all and singular other the Premisses herein before recited or mentioned with the Appurtenances to the same belonging or appertaining together with the said recited Lease and all Writings and Evidences touching the Premisses to have and to hold the said Cottage Barn and Premisses and every part thereof with the Appurtenances unto the said Defendant Mary her Executors Administrators and Assigns from and immediately after the Death and Decease of the said Thomas Nicholas party to these presents and Mary his Wife unto the end of the term and for and during all the rest and residne of the said term of 1000 Years which shall be therein to come and unexpired by and under the yearly Rents Covenants c. expressed in the said Original Indenture of Lease Then the Jury leave it to the Court whether the Deed of Assignment be good in Law or not and conclude specially if the Assignment be not good in Law then they find for the Plaintiffs and Assess Damages 50 l. and 40 s. Costs and thereupon c. And now it was argued for the Plaintiff and it was said in the first place That this Case was extraordinary that tho' the Majority of the Judges in Westminster-hall were of Opinion with the Plaintiffs yet they were forced to sue this Writ they had the four Judges of the King 's Bench and the then Mr. Justice Powell and the then Baron Powell concurring with the King 's Bench and the chief Baron Atkins being absent the other Five in the Exchequer-Chamber reversed the Judgment it having been resolved upon the Stat. of Eliz. which erects that Jurisdiction That the Concurrence of six are not necessary to reverse but only that six must be present to make a Court so that here were six to five for the Plaintiff and yet he hath lost it Then it was argued That there had been two Things insisted on below one was the finding of Damages generally and the other was as to the Validity of the Assignment and as to the finding it was said That the Matter of the Force is meer Form and if there had been no non prosequi the same could not make an Error That in C. B. and B. R. the Issue upon the vi armis c. is seldom or never taken notice of no Entry is made of it upon the postea at all unless a wounding or some such other special Matter were mixt with it in the same Issue That 't is held in the Case of Law and King 1 Saund ' 81. If nothing be answered to the vi armis in a special Plea 't is well upon a general Demurrer and the 7 Hen. 6. 13. and 1 Hen. 7.19 are plain That if the Party have the special Matter which he pleads found for him the vi armis shall not be inquired of So if the Defendant have Judgment against him upon Demurrer to the special Matter pleaded by him the vi armis shall never be tried tho' Issue were joyned upon it but the Party shall be fined upon the Capiatur c. without any Inquiry So is the King and Hopper 2 Cro. 599. in a Scire Facias on a Recognizance for the good Behaviour special Matter pleaded held That the Jury need not inquire about the vi armis if such Special Matter be found for the Defendant much more is it so in case it be found for the Plaintiff for there the Act which is found imports it c. and it shall be intended to be vi armis c. and the Book of Hen. 6. is full in it no need of any Inquiry in such Case And in this Point both the Courts having concurred the Counsel for the Defendant did not contest
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
him nay against the Lessee himself the Owner of the Lands if he takes it before the Performance of the Condition so that these Words cannot alter the Case this is not the Case of a Will but of a Deed Executed in the Life-time of the Party the Rule and the Reason of the Rule about Exceptions in Grants will hold to this where the Grant is General the Exception cannot be rejected as void on pretence of Repugnancy The Common Law doth not care to raise or make Estates by Implication where the same Person hath an express one so is Vaughan 261 262. therefore there 's no Reason in this Case to construe the whole Term to pass by Implication in the Premisses a particular Estate being limited in the Habend ' and that not being good all is void Here 's no Purchaser Creditor or Heir in the Case but 't is a meer voluntary Act to the Defendant Then was cited 1 Cro. 376. 2 Bulstr 272. of a Copy-holders Surrender Habend ' a tempore mortis and held void wherefore upon the whole it was insisted That by the Premisses nothing passed but an Estate at Will That the Habend ' giving an Estate or Interest which was not allowable in the Law the Deed was void and passed nothing and therefore the Verdict was for the Plaintiff and the Judgment in B. R. was good and accordingly it was prayed That the Reversal of that Judgment might be reversed On the other side it was argued That to construe this to be void was contrary to the Intention of both the Parties That now the Grantor and his Wife were dead and there was no dispute about their Estates That the Premisses here passed the whole 't is to her and her Executors and Assigns 't is all that Cottage 't is together with all his Deeds concerning it the Deeds are concomitant with the Estate and when he grants the Deeds he certainly did design to pass his Interest he could never mean an Estate at Will when he names the Executors c. Then was cited the Case of Lilley and Witney Dyer 272. pl. 30. Grant of all his Interest Estate and Term Habend ' after his Death the Habend ' is void Plowd 520. 1 Bulstr 191. Bro. Grants 154. Leases 66. The Presumption that a Man can out-live a 1000 Years is a weak Pretence and void of Reason Equity is a part of the Law of the Land and here to judge this void is unconscionable and unreasonable Then was cited 1 Anderson 284 290. Grant of a Reversion Habend ' after his Death shall vest immediately the Lease imports and carries the Estate Peto and Pemberton 1 Cro. 101. Plea That he had surrendred his Lease which shews that it carried the Interest they are Synonimous Bro. tit Grant 155. A Man grants omnia firma sua shall pass his Term There 's no prescribed Form for passing a Chattel before the Stat. of Frauds A Man possessed of a Term grants it to another and his Heirs it passeth the whole so to a Man for Life it shall pass the whole Interest and shall go to his Executor Plowd 424. 3 Cro. 534. If the Habend ' were out of the Case this would pass the whole and if so the Habend ' is void 't is an old Rule and a good one Vt res magis valeat quam pereat The Lord Chief Baron Hale seem'd of that Opinion in the Case of Smith and Tutchett in scacc ' but that proved a Mistake for that Case was different and was ended by Consent as appeared by a Rule Die Mercurij 13. Die Maij Term ' Pasch 26. Car. 2. after Hale was removed into the Kings Bench. Then 't was said that there could be no ill Consequence in adjudging this to be a good Assignment the like case was never probable to happen again that here had been a Diversity of Opinions below Stairs that Equity was with the Defendant and therefore 't was prayed That the Reversal might be affirmed and it was affirmed accordingly Bennett Swayne Esq Petitioner Versus William Fawkener and John Lane Executors of Benjamin Middleton Defendants WRit of Error to Reverse a Judgment in the Kings Bench given for Benjamin in an Action against Swayne for 20 l. received by him of the Profits of a Share in the New-River c. The Case was thus Simon Middleton Esq being seized in Fee of Seventeen Thirty-six Parts of the King's Moiety in the New-River Water and having Issue eight Children viz. Hugh Sarah Hannah and Anne by his first Wife and Elizabeth Rebecca Benjamin and Hezekiah by his second Wife made his last Will and thereby amongst other things to the intent that all his younger Children might be provided for he devised Seven Thirty-sixth Parts or Shares of the King's Moiety aforesaid amongst them in manner following viz. to Sarah Hannah and Anne to each of them and their Heirs one full Thirty-sixth Part or Share of the said King's Moiety free and discharged from the Fee Farm Rent payable to the King's Majesty and of 100 l. per Annum payable to Henry Middleton deceased and his Heirs and from all other Payments and Charges whatsoever And also to Elizabeth Rebecca and Benjamin and to each of them her and his Heirs one full Thirty-sixth Part or Share of the said New-River Water of the King's Moiety only they and each of them proportionably to stand charged with the payment of the Fee-Farm Rent due and payable to the King's Majesty and with the 100 l. per Annum to Henry Middleton and his Heirs and with no other Payment or Charge whatsoever and to his Son Hezekiah and his Heirs one full Thirty-sixth Part or Share of the said New-River Water the said Share being part of the King's Moiety to hold to him and his Heirs with the Rents Issues and Profits thereof from and immediately after his Decease only proportionably to stand charged with the Payments of the Fee-Farm Rent due and payable to his Majesty and with the aforesaid 100 l. per Annum to the said Henry Middleton and his Heirs and also charged with 150 l. more towards binding out of his Brother Benjamin an Apprentice when and so soon as he shall attain to the Age of Sixteen Years but with no other Charge or Payment whatsoever And further devises That in case any of his said younger Children Sons or Daughters shall happen to die before he she or they should attain the full Age of Twenty One Years or be married then and in either of the said Cases he did will and devise that Part or Share with the Profits thereof of him her or them so deceasing as aforesaid to the Survivor or Survivors of all his aforesaid younger Children Share and Share alike chargable nevertheless with the several Payments as aforesaid but liable to no other Charge or Payment whatsoever And all the rest of his Shares in the said New-River Water he gives to his eldest Son Hugh and his Heirs so that he permit
not hold there is no Breach of any Condition in Law nor any Corruption of the Blood for these Reasons Felony without Clergy forfeits Honours whereas other Inheritances tho' Fee-simple are lost but for a year and a day and so are Freeholds for Lives which is another clear Instance that Honours are not governed by the Rules of Law It is pressed as a known Law that Honours are grantable for Lives a Point of greater Consequence than the Thing in debate It 's not a fair way of arguing nor to be allowed of As for the Precedents that are Selden 730. is expresly against them for it saith that the Honour of Baronages were in Abbots only in right of their Abbies not inherent in them So that 't is plainly inferred that other Honours are Personal Dignities The Lord Delaware's Case 11 Rep. makes nothing for them for it doth not follow that because he could not Surrender that which was not in him therefore he might Surrender that which was in him As to the other Precedents he gave these three Reasons 1. They were bare Surrenders no Fines 2. All those were made by Persons that had advantage by them having greater Honours granted unto them or such whose Interest was beyond the Seas and therefore were willing to quit their Dependencies here upon good Considerations that pleased them Et volenti non sit Injuria 3. All these Surrenders passed sub silentio and never admitted of any Dispute But as for the sole melancholy Precedent of Roger Stafford 1638. which was condemned in Parliament 1640. 't is to be observed that Resolution can't be condemned because of the Times for the Affront to the Lords in taking such a Fine was in 1638. and when could it be more properly remedied then in 1640. except it be expected there were a Prophetical Spirit of Judgment against a thing not in being there were 94 Lords present and the Vote was Nemine Contradicente which gives it as great an Authority as any Resolution that ever was The King's Counsel were not heard in the Case of Ship-money nor Knighthood-money where they had more right to claim to be heard than in this Case To conclude a Fine is a Judgment in the Common Pleas and your Lordships Honours are not triable in that Court below in Westminster-hall but if this Fine be allowable they must be triable there as well as other Inheritances And as to what has been said That some of your Lordships sit here by Remainders and they are in danger if Honours be not allowed to be intailed it 's denied and if they be intailed it 's not of the same nature with other Inheritances neither doth any Lord sit here by Title of a Remainder but by Virtue of a new Grant in the same Patent 'T was afterwards declared That the Lords Spiritual and Temporal in Parliament assembled upon a very long Debate and having heard his Majesty's Attorney General are unanimously of Opinion and do resolve and adjudge that no fine levied or at any time hereafter to be levied to the King can bar a Peer's Title of Honour or the Right of any Person claiming such Title under him that levied or shall levie such Fine Duval versus Price WRit of Error on a Judgment in the Court of Exchequer affirmed on a Writ of Error before the Keeper of the Great Seal c. in an Action of the Case for Slander The Writ was to this Effect Gullelmus Maria c. Thes Baronibus de Scaccario suo salutem quia in recordo processu ac etiam in redditione judicij loquelae quae fuit in Cur ' nostra de Scaccar ' coram Baronibus nostris praed ' de Scaccar ' nostro praed ' per Billam inter Edward ' Price Arm ' debitor ' nostr ' Johan ' Duvall Arm ' de quadam transgression ' super casum eidem Edwardo per praefat ' Johannem illat ' super quo judicium in Curia nostra de Scaccar ' reddit ' fuit pro praefat ' Edwardo versus dict' Johann ' qua quidem record ' process ' causa Erroris intervenient ' in Camera Consilij juxta Scaccar ' vocat ' le Councel Chamber coram Domino Custod ' Magni Sigilli Angliae vobis praefat ' Thes venire facimus jud ' inde versus praefat ' Johann ' coram c. affirmatum est quia in affirmatione judicij praed ' versus praed ' Johannem coram c. Error ' intervenit manifestus ad grave dampn ' ipsius Johannis sicut ex quaerela sua accepimus quos Error ' si quis fuerit modo debito Corrigi eidem Johanni plenam Celarem justitiam fieri volentes in hac parte vobis Mandamus quod si judicium coram praefat ' c. affirmatum est tunc record ' process ' tam judicii quam affirmation ' praed ' cum omnibus ea tangentibus quae coram vobis jam resident ' ut dicitur nobis in Parliament ' nostro viz. 17 die Septembris prox ' futur ' distincte aperte mittatis hoc Breve ut inspectis record ' processu praedict ' ulterius inde de assensu Dominor ' Spiritualium Temporalium in eodem Parliamento Existent ' pro Errore illo Corrigend ' fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Anglie fuerit faciend ' Teste nobis ipsis apud Westm ' 8 Maii Anno 6. Record ' Process ' de quibus in Brevi de Errore huic Schedule annex ' specificat ' fit mentio sequitur in haec verba Placita coram Baron ' de Scaccar ' c. Midd ' Memorand ' quod alias scilicet c. And by the Bill Price complains of Duvall praesent ' hic in Cur ' eodem die de placito transgr ' super casum pro eo viz. quod cum he was a good Subject and free from all Suspicion of Treason and was a Justice of Peace in Radnor and Montgomery-shire and well performed his Duty and well-affected to the King and Queens Government and ready to oppose all their Enemies c. the Defendant maliciously designing to prejudice the Plaintiff and to bring him into the Displeasure of his Prince c. did tali die anno apud Westm ' in Com' Midd ' habens colloquium of the said Plaintiff say these English words of him He meaning the Plaintiff is disaffected to the Government the Government of the King and Queen meaning and having other Discourse of the Plaintiff and of the Government of the King and Queen did say of the said Plaintiff these other words viz. He meaning the Plaintiff is disaffected to the Government the said Government of the King and Queen meaning By pretext of which said words he was injured in his Credit and fell into the Displeasure of their Majesties and his Office aforesaid by reason thereof did totally lose and remain'd hitherto daily
in danger of a severe Prosecution as an Enemy to the King c. ad damp ' mill ' librar ' quo minus He can satisfie the King and Queen the Debts he owes them Et inde producit sect ' c. pleg ' c. The Defendant pleads Non cul Jury find pro quaerent ' and assess Damages 200 l. and Judgment accordingly posteaque scil 6 Julij Anno 5. iidem Dominus Rex Domina Regina Mand ' hic Breve de Errore Corrigend ' sub Magno Sigillo Anglie Thes Baron ' de Scaccar ' suo direct ' in haec verba directed Thes Baronibus suis de Scaccar ' suo quia in recordo processu c. Error ' intervenit manifestus ad grave damp ' c. sicut ex querela sua accepimus ac cum in 31 Edw. 3. inter cetera concordat ' stabilit ' fuit quod in omnibus casibus Regem aut al' personas tangent ' ubi quis queritur de Errore facto in Scaccario Cancellar ' Thes Venire fac ' coram eis in aliquam Cameram Consilij juxta Scaccar ' record ' process ' hujusmodi extra dict' Scacc ' assumptis sibi justic ' al' peritis tal ' qual ' sibi videbitur fore assumend ' vocari fac ' coram eis Barones de Scaccar ' praed ' ad audiend ' Informationes suas causas judicior ' suor ' super hoc negotium hujusmodi debite facer ' Examinari Et si quis Error ' invent ' fuer ' illum corrigend ' rotulos Emendari ac postea eos in dictum Scaccar ' ad Execution ' inde faciend ' remitti fac ' sicut pertinet prout in eodem Statuto plen ' Continent ' Nos igitur volentes errorem si quis fuit ' juxta formam Statuti praed ' corrigi partibus praed ' plenam c. Vobis mandamus quod si judicium inde reddit ' sit hinc record ' process ' praed ' cum omnibus ea tangentibus coram Domino Custod ' Magni Sigilli Anglia vobis praefat ' Thes in Camera Consilij juxta Scaccar ' praed ' vocat ' le Councel Chamber die Martis viz. 31 Octobris prox ' futur ' Venire fac ' ut idem Dominus Custos Magni Sigilli Angliae vos praefat ' Thesaur ' Visis Examinatis c. ulterius in hac parte de Concilio Justiciar ' al' peritor ' hujusmodi Fieri fac ' quod de jure secund ' formam Statut ' praed ' fuit faciend ' Test ' nobis ipsis apud W. c. Ad quem diem Martis viz. 31 die Octobris coram Johanne Somers Mil ' Domino Custode Magni Sigilli Angliae nullo Thesaur ' adtnuc Existent ' hic scil ' in Camera Consilij apud Westm ' praed ' venit ' praed ' Johannes Duvall per S. A. Attorn ' suum Et praed ' Thesaur ' Barones record ' process ' praed ' cum omnibus ea tangentibus tunc hic Venire faciunt Et super hoc the said J. Duvall assigns the General Error and the said Price pleads In nullo est Erratum and after several Curia advisare's and days given super hoc visis intellectis omnibus singulis praemissis per praefat ' Dominum Custodem Magni Sigilli praed ' nullo Thesaur ' adtunc Existent ' maturaque deliberatione inde habita assumptis sibi J. Holt Mil ' Capital ' Justiciar ' c. G. Treby Mil ' c. Vocatisque coram eo Baronibus de Scaccar ' praed ' auditisque rationibus Baronum praed ' Visum est praefat ' Custodi Magni Sigilli praed ' nullo Thesaur ' adtunc Existent ' de Concilio Justiciar ' praed ' quod in record ' aut processu praed ' vel redditione jud ' praed ' in nullo est Erratum Ideo consideratum est per praed ' Custodem Magni Sigilli Anglie nullo Thesaur ' adtunc Existent ' quod judicium praed ' in omnibus affirmatur c. Upon the General Error assigned here in the Judgment and Affirmance aforesaid the single Query was If these words He is disaffected to the Government be actionable And it was argued by the Counsel for the Plaintiff in the Writ of Error that they were not because they are general and uncertain do not import any particular Crime which exposes to any particular Penalty and they carry no Reference to his Office and tho' he be alledged to be a Justice of the Peace yet there 's no Colloquium laid concerning his Office To make words actionable they must either tend to the Scandal and Discredit of the Party or such if true as must bring Damage to the Party of whom they are spoken otherwise without special Damage laid and proved there 's no reason for the Jury to give Damages because he suffers none In ancient time these Actions were rare the Year-Books are little acquainted with them and tho' latter Ages have countenanced them yet it hath been under certain Rules and Limitations as that they ought to be particular and clear for if they are so general as to be ambiguous no Action is warrantable upon them and therefore they must be of a single and known Sense and such against which no other Intendment can reasonably be admitted Slander raised by Argument or Implication or Inference only is not enough to maintain an Action And tho' the Causa dicendi be not inquirable now after a Jury hath found them spoken as laid viz. maliciously yet if the words themselves do not imply Malice and Damage the use of those Adverbs which are commonly mention'd in such Declarations will not alter the Case for Men are to be answerable only for their own words and not for words expounded or described in another manner than the Speaker intended Here the word disaffected is none of the plainest nor is the word Government much plainer the first is only a Negative and to say He is not affected to the Government goes only to a want of Zeal or an indifference of Temper and doth not carry in it any treasonable Intent or Purpose much less any Act done And as to the pretended Special Damage in the loss of his Prince's Favour or incurring his Displeasure that is such an Allegation as should not have been made 't is neither mannerly nor justifiable in the Plaintiff to affirm such a thing upon Record And as to the loss of his Office that can be no Damage the same being no Place of Profit but meerly of burden and trouble 'T was further urged That if these words were allowed to be actionable Tory Whig or Jacobite or any other common rude uncertain Terms in Discourse might pretend to it according to the respective Turn of Times and consequently no Body would know what Discourse is allowable As ill Tongues were to be corrected so care is to be
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
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
Suspended were Seniors to the Consenting Scholars Then they find that after this Sentence Painter was elected into the Rectorship Concurrentibus omnibus requisitis si praedict ' Officium Rectoris eo tempore fuit vacans and that Dr. Bury 1 June Anno Jac. 2. semper postea usque sententiam praedict ' si sententia in contrar ' non valeat semper postea fuit adhuc est verus legitimus Rector Collegij praedict ' That William Painter as Rector and the Scholars of the said Colledge did make the Demise in the Declaration and thereon the Plaintiff entred and Dr. Bury enters on him and holds and yet doth hold him out modo forma prout in nar ' c. sed utrum super totam materiam praedict ' locus Rectoris per privation ' praedictam praed ' Arthuri legitime vacavit nec ne the Jury are ignorant si per inde locus praedict ' legitime vacavit tunc pro quaerent ' si non tunc pro Defendent ' It was argued on the behalf of the Plaintiff in the Writ of Error That this Judgment was illegal and the general Question was Whether this Sentence of Deprivation thus given by the Visitor against Dr. Bury did make the Rectorship void as to him and so consequently gave a Title to the Lessor of the Plaintiff But upon this Record the Questions were two 1. Whether or no by the Constitution of this Colledge the Bishop had a Power in this Case to give a Sentence 2. Supposing that he had such a Power Whether the Justice of that Sentence were examinable in Westminster-hall upon that Action And 1. 't was argued That the Bishop had such a Power to give a Sentence and it was agreed that he could make his Visitation but once in five Years unless he be called by the Request of the Colledge and if he comes uncalled within the five Years his Visitation would be void But yet the Visitation of the 24th of July was a good Visitation and consequently the Sentence upon it is good that there was no colour to make Dr. Masters's coming in March to examine Colmer's Appeal upon the Visitor's Commission to be a Visitation and that because it was a Commission upon a particular Complaint made by a single expelled Fellow for a particular Wrong and Injury supposed to be done to him and not a general Authority to exercise the Visitatorial Power which is to inquire into all Abuses c. Colmer complains that he was expelled without just Cause and seeks to the Visitor for redress they having expelled him for an Offence of which he thought himself innocent and the Visitor sends his Commissary to examine this particular matter Then 't was urged That tho' a Visitor be restrained by the Constitutions of the Colledge from visiting ex officio but once in five Years yet as a Visitor he had a constant standing Authority at all times to hear the Complaints and redress the Grievances of the particular Members and that is part of the proper Office of a Visitor to determine particular Differences between the Members and thus is Littleton's Text sect 136. that complaint may be made to the Ordinary or Visitor praying him that he will lay some Correction and Punishment for the same and that such Default be no more made c. And the Ordinary or Visitor of right ought to do this c. and so was it held in Appleford's Case in the Court of King's Bench who was expelled upon a like occasion as Colmer was he appealed to the Bishop of Winton who was Visitor and he confirmed the Expulsion and held to be good upon the Appeal for the hearing of Appeals is a standing fixed constant Jurisdiction Visiting is one Act or Exercise of his Power in which he is limited as to time but redressing of Grievances is another and his proper Office and Business at all times 'T is the Case of all the Bishops of England they can visit by Law but once in three years but their Courts are always open to hear Complaints and Determine Appeals so that here tho' but one Visitation can be in five years without request yet the Power and Authority to hear and examine any difference between the Members and to relieve against any particular Injury that 's continual and not limited Then 't was argued That tho' what was done upon the 16th of June was with an Intention to Visit yet being denied to enter the Chappel where the Visitation was appointed to be held it was none and his Calling over the Names was only to know who hindred the Visiting and his making an Act of it afterwards or administring an Oath at the time can never be called one tho' it hath been below said to be a tacking that of June to that of July but that cannot be for then it continued much longer than was intended nay much longer then it can by the Statutes of the Colledge for that is to cease in three days It turns rather the other way having been hindred in June he makes an Act of it in July in order to call them to an account for it as for a Conturnacy and to bring them to Judgment at his Visitation 'T was no more then taking an Affidavit of the Service of a Citation The appointment of a Visitation in the Hall was occasioned by the Obstruction met with at the Chappel and 't would be a very strange Construction that when he designed a Visitation and was hindred that the Hinderance and his Inquiry about it should be called a Visitation and a former Contumacy in opposing an intended Visitation should prevent their being subject to an actual true one Then 't was argued That there was no necessity that there should be the Consent of the four Senior Fellows to the Deprivation of the Rector and by one of the Counsel 't was owned that if such Consent had been necessary the Sentence had been a Nullity But as this Statute is framed 't was argued that the Bishop might deprive tho' they did not concur for these Reasons 1. By the Statutes the Bishop for the time being is made the ordinary Visitor of Exeter Colledge and that where any one is Visitor of a Colledge he hath full and ample Authority to Deprive or Amove any Member of the Colledge quatenus Visitor 2. There is an express Power given to the Bishop to proceed to the Deprivation of the Rector or the Expulsion of a Scholar and this in his Visitation And 3. The qualifying words do not restrain it to be with the Consent of the four Fellows the word is Deprivatio as to the Rector and Expulsio as to the Scholar tho' they are synonymous as to real Sense yet by this Statute they are differently applied Then it says If the Bishop do proceed c. that only relates to the Case of a Scholar because the word there used is Expulsio which is never applied but to the amotion
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
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
yet where it was good at Law and no Cheat or Imposition upon the Party but he meant as he had undertaken to pay this Money and was not deceived in his Expectation as to the Success of the Respondent's Endeavours 't would be hard in Equity to damn such a Security and therefore 't was prayed that the Decree should be affirmed It was replied That Marriages ought to be procured and promoted by the Mediation of Friends and Relations and not of Hirelings that the not vacating such Bonds when questioned in a Court of Equity would be of Evil Example to Executors Trustees Guardians Servants and other People having the Care of Children And therefore 't was prayed that the Decree might be reversed and it was reversed accordingly The Society of the Governour and Assistants London of the new Plantation of Ulster in the Kingdom of Ireland Versus William Lord Bishop of Derry APpeal from a Judgment by the Lords Spiritual and Temporal of Ireland in Parliament assembled upon the Bishop's Petition and Appeal to their Lordships form an Order in the Chancery touching certain Lands in the County and Liberties of London-Derry It sets forth amongst other things after a recital of the Proceedings in Chancery and the Merits of the Cause that the Appellants were advised that no Appeal lyes to the House of Lords in Ireland from the Court of Chancery there but that all Appeals from thence ought to be immediatly to their Lordships here the Supreme Judicature as well for Matters arising in Ireland as in this Kingdom and therefore in the Conclusion prays that an Order might be made for the said Bishop to appear and put in his Answer thereto that the Matter might be heard before their Lordships here when it should be thought fit and that the Petitioners might receive such relief as should be agreeable to their Lordships great Wisdom and Justice c. Upon presenting this Appeal to the Lords here the House appointed Lords Committees to consider the proper method of Appealing from the Decrees made in the Court of Chancery in Ireland and to report c. Then pursuant to an Order made by the Lords Committees and a Letter sent to the Lords Justices of Ireland by Order of the House of Lords here Some Precedents or Cases from Ireland relating to the method of appealing from the Chancery there were brought before the said Committee and reported to the House whereupon the House ordered that both Parties might have Copies of the same Then the Society took Copies and preferred a short Petition to the House setting forth the said matter and that they were ready by their Councel to offer several things in order to their Lordship's receiving and proceeding upon their said Appeal whereupon a day was appointed for the hearing of Councel on both sides with regard to Jurisdiction And It was accordingly argued on behalf of the said Society that the Judgments in Ireland whether in Law or Equity were not to be finally Determined there that Ireland was dependant upon England 't was urged to prove it that our Money was to be Current there that our Laws did oblige them that they were governed secundum leges consuetudines anglicanas Davis 21. in which Book 24. that the Easterlings in England who first made the Money of this Standard and from whose Name comes that of Sterling were the first Founders of the four Principal Cities of Ireland Dublin Waterford Corke and Limrick and the other Maritime Villes in that Country and were the sole Maintainers of Traffick and Commerce there which were all utterly neglected by the Irish These Cities and Villes were under the Protection of King Edgar and Edward the Confessor before the Norman Conquest and these Easterlings in Ancient Record are called Ostmanni and therefore when Hen. 2. Upon the first Conquest after their Apostacy thought fit to People those Cities and Villes with English Colonies drawn from Exeter Bristol and Chester c. he assigned to them a certain proportion of Land next adjoyning to each of those Cities which Portion is called in the Records in Ancient time Cantreda Ostmannorum Davis 25. says further that Ireland is a Member of England Inhabitantes ibidem legibus Angliae subjiciuntur utuntur In the Statute of Faculties 28 Hen. 8. cap. 19. 't is mentioned to be the King's Land of Ireland and that this the King's Land of Ireland is a Member Appendant and rightfully belonging to the Imperial Crown of the Realm of England and united to the same And in the 33 Hen. 8. cap. 1. by which the Stile and Title of King of Ireland was given to Hen. 8. his Heirs and Successors 't is further Enacted that the King shall enjoy this Stile and Title and all other Royal preeminences Prerogatives and Dignities as united and annexed to the Imperial Crown of England Nay It may be compared to a County-Palatine Created by the King of England for Davis 62. speaking of that he says that a County-Palatine hath in it jura regalia which consists in Royal Jurisdiction and Royal Seignory By the first it hath all its High Courts and Officers of Justice which the King hath and by the latter it hath Royal Services and Royal Escheates as the King hath and therefore in some respects 't is separated and disjoyned from the Crown as is Plowd 215. yet 't is subordinate and dependant though it be said that breve Dom ' Regis non Currit there yet the Writ of Error which is the dernier resort and in like manner an Appeal is excepted out of their Charters so is Dyer 321. and 345.34 Hen. 6.42 and it would be excepted if it were not so expressed for to have the ultimate Judgment is that which the King cannot grant for such grant would if allowed alter the fundamental constitution of the Realm So in Ireland which is a Realm of it self as Consisting of many Counties Erroneous Judgments given in the chief place there shall be reversed in the King's Bench in England Davis quotes Bracton lib. 3. tit ' coron ' cap. 8. that Comites Palatini habent regalem jurisdictionem in omnibus Salvo Dominio Regi sicut principi so that by his Opinion they are much the same and no Man will deny but that in all Proceedings in Law or Equity the last resort is to the Parliament of England there it is that the King 's supreme Authority is exercis'd It must not be said to be a Conquered Country for the Earl of Stassord's sake though Coke and Vaughan have affirmed it so But it may be called a Plantation or Colony dependant upon England and to many purposes parcel of it This hath not only the same person for their King but 't is under the Crown and Government of England there must be in all these Cases a Superiority or superintendency over inferiour Dominions for otherwise as Vaughan puts it 401. the Law appointed or permitted to such places might be insensibly changed within it self
without the assent of the Dominion Superiour And 2. Judgments or Decrees might be there made or given to the disadvantage or of lessening that Superiority which cannot be reasonable or to make the Superiority to be only in the King not in the Crown of England as King Jac. 1. would have had it and consulted Selden upon the point Now though the Writ of Error be only mentioned yet the same reason holds to both and the true cause why we have not so many Ancient precedents of Equity Cases as of Law ones is for that in Ancient time the Equity Courts were not so high meddled with few matters and in a Summary way but since their Authority is so advanced and their Jurisdiction so enlarged that most questions of property are become determinable there and almost every suit begins or ends with them to the entire subversion of the Old Common-Law It is and must now be reasonable to have the Examination of their final Sentences in the Parliament of England as well as of the other Suppose non-residence in Ireland should be pretended a Forfeiture of the Estate to the next remainder Man or to the King Can it be safe for to intrust them with a conclusive Opinion in this matter When Calais was in our hands Writs of Error lay thither 21 Hen. 7. fol. 3. As to the pretence that the orders of this House cannot be executed there 't is very vain for if the King's Bench Command their Judgments to be executed there this House may order theirs and in like manner as they do to the Chancery here In 15 Rich. 2. numb 17. in the Abbot of St. Osithe's Case the Lords here made an Order and charged the Lord Chancellor that he see it performed and this hath been constant practice It hath been imagined That the Jurisdiction of this House in matters of this kind is dated from the 21 Jac. 1. as to the proceedings in Chancery but that is not now to be disputed for the Commons in Parliament Assembled did agree it to be the Right of this House in the Case of Skinner and the East-India Company and in the Book about it supposed to be written by that Noble Lord the Lord Hollis 105. 't is said that where the King 's Sovereigntydoth not reach the Jurisdiction of this House cannot the contrary is implied that where the King of England's Sovereignty doth extend the Jurisdiction of this House doth so too and no Man will affirm That Ireland is out of or beyond the limits of the Sovereignty of the English Crown And as to the exercise of this Judicature by the Lords here nothing can be stronger for it then the 1 Hen. 4. numb 79. So 't is in the Record though in Cotton's Abridg 't is 80. the Commons declare that all Judgments Appertain to the King and Lords and not to them Skinner's Case 199 200. 4 Inst 349 353 354. It was further argued That Protection commands a due Subjection and that these people who insisted upon this independency had forgot the English Treasure and Bloud which had been spent for their preservation That they are part of England and subject to its Laws appears from the common Case of an incumbency here being made void by acceptance of a Bishoprick in that Colony Besides that in Ancient time the Arch-Bishop of Canterbury was Primate of Ireland and had the Confirmation and Consecration of Bishops there Cambden's Britt pag. 735. and 765. 4 Inst 360. then 't was urged that the Question now was whether it were a Dominion inferiour or equal to and independant upon the Realm of England That the constant practice had been for the Lords here to examine the Decrees in their Court of Chancery that the refusing of this Appeal would shake all those Cases thus determined that every Appeal-here from their Equity Sentences which have been very many was an Argument against the Order of their Lords and for the receiving of this Appeal here That this thing hath been acknowledged even by the Rebels there for in Sir John Temple's History of the first Progress of the Irish Rebellion written 1641. pag. 141. amongst the several propositions made by the Irish then in a general Rebellion these two are mentioned 1. That by several Acts of Parliament to be respectively passed in England and Ireland it should be declared that the Parliament of Ireland had no subordination to the Parliament of England but should have supreme Jurisdiction in that Kingdom as Absolute as the Parliament of England here hath 2. That the Act of 10 Hen. 7. called Poyning's Act and all other Acts expounding or explaining that Law should be Repealed both which with their other dangerous propositions were justly rejected however it shews their Opinion that at that time the Law was or was taken and deemed to be against them in this point and there is as much reason for keeping the final Judicature here as there is for maintaining the Superiority and Obligatory Power over them in the legislature 'T was farther urged That the with holding the Irish Lords from having the like Jurisdiction in their Parliament as the Lords in England have in Judging upon Appeals and Writs of Error was absolutely necessary for the preserving of the Possessions of the English in Ireland for those of that Country must be suppos'd to incline to their own interest and cannot be suppos'd so much inclined to love and affect the English amongst them And that this Power of Judging here is Co-eval with the very Constitution of the Government 'T was further urged That their Precedents returned did or concern the point in Question except the two or three Cases in 1661 and 1662. and two Appeals lately in 1695. that their Case of the Prior of Lauthony in 8 Hen. 6. Prynnes Animadversions 313 314 was against them the Prior having removed a Judgment in the King 's Bench in Ireland into the Parliament there which affirmed it did bring a Writ of Error in the King 's Bench in England and they refused to meddle with it the reason was because the Writ of Error before the Lords there did not lie and that it ought to have come hither immediately and all the rest of their Quotations in their Printed Case either prove nothing at all or too much for they are against the allowance of Writs of Error in the King 's Bench in England and against the Legislature of England's being able to oblige the people of Ireland both which have been approved by constant practice and therefore it was prayed that the Appeal here might be allowed and the Order of the Irish Lords might be vacated On the other side it was argued from 1 Inst 141. Prynne's Animadversions 286. and 4 Inst 12. that their Parliaments had the same Authority there in respect of making Laws for that Country as the Parliaments have for England that they have ever since 10 Hen. 7. Re-enacted there such subsequent Acts of England as they thought
of the Appellant That in this Deed there was no Appointment to the Respondent till after the death of the Appellant and his Issue that all the pretence for Webb's Claim was That the Trust to the Appellant was not to take effect till the Duke's death altho' the said Duke had no Interest in the Estate as hath been adjudged by the Supreme Judicature of the Realm that by the whole purport and design of the Settlement and Will and the positive words of it Sir Henry Wood intended the said Trusts in Succession and Order as they are mentioned that the Design of the whole was not to give any thing to the Respondent till after all the mediate Limitations were spent It was argued on the other side with the Decree That this Right of the Respondent to a Moiety as long as the Duke lives is a necessary Consequence of the Lord's Judgment in the other Case that the same is founded upon fixed and established Rules of Law as that an Heir is not to be disinherited by Construction or Implication but by plain and express words nor will the Law give away an Estate or make it to Commence sooner than the plain and express words will warrant that wherever an Estate is limited in Remainder that depends upon a Contingency or a Condition precedent there till the Condition be performed or Contingency happens that Estate cannot Commence that this was the foundation of the Argument for the Appeliant in the other Case And the same Rules hold here for here is a precedent Condition for after the Marriage once had the Duke must die and die without Issue or that Issue die without Issue before the Appellant can take The Owner says that the Appellant is not to have it till then that there is not one Reason which can be urged against the Duke but may with equal force be urged against the Appellant in this Case that the Respondent claims not by the Settlement but as a Coheir to have that which is not disposed of and what is not so disposed must descend or result for the benefit of the Heirs Wherefore it was prayed that the Decree should be affirmed and it was affirmed The Bishop of Exeter al' versus Sampson Hele. Writ of Error upon a Judgment in a Quare Impedit in C. B. affirmed in B. R. The Case upon the Record was thus HE le brings his Quare Impedit as seized of the Mannor of Southpole in Com' Devon ' to which the Advowson of the Church of Southpole belongs in his Demesne as of Fee and so being seized he presented thereunto when vacant John Vlt. his Clerk who at his Presentation was admitted and instituted that it became void by his death and belonged to him to present and that the said Bishop and Gauâ—yn Hayman hinder him ad dampn ' c. The Defendants came and defend vim injur ' quando c. and the Bishop says Actio ' non quia dieit that the Church is within his Diocess and that he claims nothing in it but as Ordinary that 't is a Benefice with Cure of Souls that 15 Aprilis Anno Willielmi Mariae secundo it became void by the said Incumbent's death he being Ordinary after which Vacancy and within Six Months prox ' post mortem praed ' J. V. viz. 19 May eodem Anno the Plaintiff presented to him one Francis Hodder as his Clerk which said Francis was a Person in Literatura minus sufficiens sen capax ad habend ' dictam Ecclesiam Super quo praed ' Episc ' as Ordinary of the Church aforesaid did according to the Ecclesiastical Laws Examine him of his Ability and Fitness in that behalf ut de jure debuit and upon such Examination he found him to be a Person in Literatura insufficient ' ac ea ratione fore personam inhabil ' minime idoneam ad habend ' the said Benefice with Cure of Souls per quod the said Bishop as Ordinary did refuse him of which after the said Refusal the Bishop within the six Months did give the Plaintiff notice viz. 20th June Anno supradict ' and that he might present another Person to the said Church that the Plaintiff did not present any other within the six Months per quod it belonged to the Bishop as Ordinary of the place to Collate a fit and proper Person and thereupon he did Collate Gauwin Hayman who was instituted and inducted hoc parat ' est verificare unde pet ' Jud ' c. The Incumbent pleads the same Plea Mutatis mutandis The Plaintiff replies That Hodder at the time of the Presentation and long before was Vicar of the Parochial Church of Vxborough in Com' praed ' and to that Vicaridge lawfully admitted instituted and inducted homo Literatus infra Sacros ordines constitut ' in verbo Dom ' Doct ' instruct ' post Doctrine Literat ' examen ordines Sacerdotales per ordination ' Episcopalem adeptus fuit intuitu Spiritualis Doni favente Deo in ea parte contingent ' ad predicand ' verbum Dei in per Diocesim Exon by Anthony late Lord Bishop of Exon Licentiat ' curam habens exercens Animar ' Divino Servitio per multos Annos assidue incumbent Divinum Servitium Celebravit adhuc Celebrat ad Divina Servitia Celebrand ' Scil ' in legendo Orando Praedicando Sacra Ministeria ministrand ' Satis Sufficienter Literatus vixit apud Southpole praed ' hor ' par ' est ver ' unde petit Jud ' c. The Defendants rejoyn That protestando that Hodder was never Vicar of Vxborough nor in Orders nor Licensed to Preach pro placito they say that Hodder when Presented was a Man illiterate and that they are ready to aver ubi quando prout curia c. The Plaintiff surjoyns That Hodder was Vicar in Orders and Licensed prout hoe petit quod inquiratur per patriam and the Defendant's Demur Jud ' pro quer ' affirme en B. R. It was argued on behalf of the Plaintiffs in the Writ of Error that this Judgment and the affirmance of it were Erroneous For That the Ordinary had in this Case a Power of examining this Presentee notwithstanding their pretence of Orders and License and the former Examination by Dr. Sparrow late Bishop and consequently their Replication and Surrejoynder are naught for they rely upon that and nothing else 'T was insisted on below That a Parson once Ordained is certainly presumed to have sufficient Learning for any Cure of Souls nay that such Examination upon his Ordination shall conclude any succeeding or other Ordinary from Examining such a Person when Presented to a Benefice but this is contrary both to Reason and Law and so agreed by most of the Judges who delivered their Opinions for the Plaintiff in the Action below 'T is against all Reason and Sense That because one
tried by a Jury And the Petition is wholly of a new Nature and without any Example or Precedent being to compel Judges who are by the Law of the Land to act according to their own judgments without any Constraint or Compulsion whatsoever and trenches upon all Mens Rights and Liberties tending manifestly to destroy all Trials by Jury And it is further manifest That this Complaint is utterly improper for your Lordships Examination for that your Lordships cannot apply the proper and only Remedy which the Law hath given the Party in this Case which is by awarding Damages to the Party injured if any Injury be done for these are only to be assessed by a Jury And they these Respondents are so far from apprehending they have done any wrong to the Petitioners in this Matter that they humbly offer with your Lordships leave to wave any Priviledge they have as Assistants to this Honourable House and appear gratis to any Suit that shall be brought against them in Westminster-hall touching the Matter complained of in the Petition And they further with all humility offer to your Lordships Consideration That as they are Judges they are under the Solemn Obligation of an Oath to do Justice without respect of Persons and are to be supposed to have acted in this Matter with and under a due regard to that Sacred Obligation and therefore to impose any thing contrary upon them may endanger the breaking of it which they humbly believe your Lordships will be tender of And they further humbly shew to your Lordships That by a Statute made in the 25th of Edw. 3. cap. 4. it is enacted That from thenceforth none shall be taken by Petition or Suggestion to the King or his Councel unless by Indictment or Presentment of good and lawful People of the Neighbourhood or by Process by Writ Original at Common Law and that none shall be put out of his Franchise or Freehold but by the Course of the Common Law And by another Statute in the 28th of Edw. 3. cap. 3. it is expresly provided that no Man shall be put out of his Lands and Tenements nor imprisoned or disinherited but by due Process of Law And by another Statute made in the 42 Edw. 3. cap. 3. it is enacted That no Man shall be put to answer without Presentment before Justices or Matter of Record on due Process and Original Writ according to the old Law of the Land And the Respondents further say That inasmuch as the Petition is a Complaint in the nature of an Original Cause for a supposed Breach of an Act of Parliament which Breach if any be is only examinable and triable by the Course of the Common Law and cannot be so in any other manner and is in the Example of it dangerous to the Rights and Liberties of all Men and tends to the Subversion of all Trials by Juries these Respondents conceive themselves bound in Duty with regard to their Offices and in Conscience to the Oaths they have taken to crave the benefit of defending themselves touching the Matter complained of in the Petition by the due and known Course of the Common Law and to rely upon the aforesaid Statutes and the Common Right they have of Free-born People of England in Bar of the Petitioners any further proceeding upon the said Petition and humbly pray to be dismissed from the same Then it was after Debate ordered That Counsel be heard at the Bar of the House on the said Petition And afterwards upon the Day appointed for the hearing of Counsel it was insisted on in the behalf of the Petitioners That here was a Right and a Right proved and no ways to come at it but this that if a Bill of Exceptions be tendred and refused this House can command them to do it that this proceeding of the Judges is to stifle the Matter of Law the Writ upon the Statute must be returnable here and cannot be otherwise that this follows the Judgment into Parliament that this House is to judge of every thing belonging to that Judgment that if this cannot be done there will be a failure of Justice that there have been Writs of Error upon Judgments with the Bill of Exceptions annexed that Damages to be recovered in an Action gives no Reparation for the Office that the Action must be brought before the Judges and so it must be a Dance in a Circle that as to the Judges Oaths the Justices of Peace are upon their Oaths and yet they may be committed that this is not fit for a Jury to try Whether the Judges have done well or ill in refusing to Seal this Bill of Exceptions This Refusal is the way to keep the Law within the Bounds or Walls of Westminster-hall and effectually to prevent its ever coming hither that this was not a Complaint of the Judges that as yet they would not accuse them of a Crime they only said fac hoc vive that the Court of King's Bench below doth the same thing to the Judges in Ireland they command others and ought to be commanded that they themselves send Mandatory Writs as the Cases are in Yelvert ' Cro. Car. That the Lords had directed the Judges in many things and so they did in Jeffrey Stanton's Case that by Command under the Privy Seal things have been done which otherwise would not and my Lord Shaftsbury was remanded to the Tower upon the Authority of that Case 15 Edw. 3. the Statute says that the Peers shall Examine for by great Men are meant the Peers Then were urged certain Cases where the Lords had commanded the Chancery to proceed speedily and to give Judgment c. Earl of Radnor's Case Englefield and Englefield and other like Cases were quoted and from thence they argued the Power of the Lords to command the Judges to do the thing desired 'T was argued on the other side against the Petition to this effect That this was a Cause of great consequence in respect of the Persons concerned as also of the Subject Matter it being the Complaint of a Noble Peeress against three of the Judges before whom she was lately a Suitor and concerning the Jurisdiction of this House That this Petition was the most artificial which could be contrived to hinder the Justice of the Law and to procure a Determination in prejudice of Two hundred thirty five years enjoyment that it is designed to get a Cause to be heard and adjudged on a Writ of Error by the Evidence onone side only or rather by that which was no Evidence at all if the Copy produced at the Trial was true for now upon the return of what they desire nothing of the Defendants Evidence would or could appear When a Bill of Exceptions is formed upon the Statute it ought to be upon some point of Law either in admitting or denying of Evidence or a Challenge or some Matter of Law arising upon Fact not denied in which either Party is over-ruled by the
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
' suum ad prosequend ' predict ' primum Breve de Errore in et super Indictament ' predict ' pro alta proditione predict ' quod tamen Benedict ' Browne nullum habuit ' Warrant ' Attorn ' pro eodem Johanne Walcott de Recordo affilat ' ideo in eo manifeste est Errat ' Errat ' est etiam in hoc viz. quod Record ' predict ' apparet quod Judicium predict ' pro revocatione et adnullatione Judicij predict ' versus predict ' Thomam Walcott in forma predict ' reddit ' redditum fuit pro predict ' Johanne Walcott versus dict' Dominum Regem ubi per Legem terre hujus Regni Angliae Judicium ill ' reddi debuisset pro dicto Domino Rege versus eundem Johannem Ideo in eo scil manifeste est Errat ' et hoc parat ' est verificare unde pet ' Judicium et quod Judic ' ill ' ab Error predict ' et al' in Record ' et Process ' predict ' existen ' revocetur adnulletur et penitus pro nullo habeatur et quod dictus Dominus Rex ad que omnia ipse occasione revocation ' et adnullation ' Judicij predict ' amisit restituatur c. It was argued on behalf of the King That there was no Warrant of Attorney filed and consequently the Reversal was not regular for default of an Appearance by the Heir who prosecuted the Writ of Error and that there was no Day given to the Attorney General nor was the Attorney General or the Patentee a Party to the Record nor any Plea or Answer made by either of them to the Assignment of the Errors To this it was answered That by the Common Practise in the Crown-Office no Warrants of Attorney are filed neither for Defendants upon Indictments nor for Plaintiffs in the Writ of Error that it had not been known within the Memory of any Man living that such Warrants were ever filed That there need no day to be given to the King or the Attorney General for that the King's Attorney was supposed always present in Court and the King cannot be Nonsuited because he cannot be called That there never was any Answer to the Assignment of Errors in such Cases That in Capital Cases there needs no joyning of Issue upon pleading Not Guilty Then it was argued That there was no Error to warrant the Reversal to the Attainder that the Exception taken to the Judgment was trivial and frivolous that ipso vivente was not of necessity to be inserted that never any Judge was known to require that the Man's Bowels should be burnt while he was alive that the same was impossible to be executed that the Law never appointed any Judgment for Treason as essential besides Drawing and Hanging and that Quartering has been so long used as to be accounted part of the Judgment yet 't is not necessary to make a good Judgment and if that be so no more is needful than Drawing Hanging and Quartering that Ancient Presidents were thus short Rot ' Parliament ' 3 Hen. 5. p. 1. n. 6. Thomas de Gray al' had been Attainted of Treason upon a Special Commission at Southampton and the Record of the Attainder removed into Parliament 3 Hen. 5. and the Judgment was good Thomas de Gray ut proditor Domini Regis Regni sui Angliae distrahatur suspendatur decapitetur And in the Records Penes Thes Camar ' Scacc ' 3 Hen. 7. f. 10. a. 't is detrahatur suspendatur And many other there are in that place to the same effect and in the same manner Glanvil lib. 3. cap. 13. Fleta cap. 16. And there is the Case of David Prince of Wales who was Drawn Hang'd Beheaded Dismembred and Burnt Britton de Treason cap. 8. p. 16. Drawing and Death is the Punishment of Treason des Appeles c. 22. p. 43. to the same effect Lib. Assis 30 Edw. 3. pl. 19. and abundance of Records were cited as found in the Exchequer and nothing mentioned in them but detrahatur suspend ' And then was cited Rot. Parl. 2 Hen. 6. n. 18. and the Book 1 Hen. 6.5 19 Hen. 6.103 and 1 Hen. 7.24 Bro. Coron 129. there is a Judgment against Humfry Stafford per omnes Justiciar ' Angliae quod iterum ducatur turri abinde ponatur super herdillum et trahatur per London ad Tyburn ibidem suspendatur et ante mortem corda scindantur et caput scindatur et Corpus ejus dividatur in quatuor partes et mittentur ad voluntatem Domini Regis Earl of Essex's Case Moore 's Rep. and Owen's Case in 1 Roll's Rep. have not this inserted And Stamford who was a Judge in 1 et 2 Phil. et Mar. says c. 19. p. 128. only en son view And Alexander Burnett who was convicted of Treason for taking Romish Orders at the Old Baily 26 Car. 2. Rot. 56. had no such Judgment Corker's Case for the like Offence 31 Car. 2. Rot. 239. William Marshall 31 Car. 2. Rot. 240. And Mr. John Hampden had the like Judgment as Burnett c. 1 Jac. 2. upon confessing an Indictment of the same kind with Walcott's Whereupon considering that many Presidents were without this and that the Essential Parts of the Punishment were in this Judgment 't was prayed that the Judgment of Reversal might be Reversed and the Attainder confirmed On the other side it was argued That the Original Judgment was Erroneous and the Reversal just And first it was observed That this Writ of Error was new and particular ex gravi querela of the Countess of Roscommon who had nothing to do with the Record was a meer stranger to it and yet 't is suggested that the Reversal was to her Damage Then 't was urged that there was an Error in the first Judgment for that the Judgment in Case of Treason is by the Common Law and that it is and must be certain and not at the pleasure of the Court which pronounces and gives it That it ought to be severe because 't is a Punishment for the greatest Offence which can be committed Crimen lese Majestatis a Sin of the first Magnitude an Offence which imports Treachery to the Prince Enmity to the Country Defiance to all Government a Design to overthrow and confound all Order and Property and even the Community it self and in its Consequence occasions the Practise of all other Crimes whatsoever as Murders Burglaries Robberies c. and therefore our Constitution hath imposed upon it a severe and cruel Judgment such as the English do allow or permit in no other Case the greatest of other Crimes incur Death only but for Treason the Judgment is different Sir Tho. Smith's Treatise de Republica Anglic. 198. there ought in reason to be a proportion between the Offence and the Punishment and as this is the greatest so the Penalty is morte multo atrocior and in Fleta lib. 1. p. 21. 't is
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
contra ligeantie sue debitum and as to this it was argued That it was not necessary to use those very Words That they are not Terms of Art such as are absolutely necessary they are not like to the Words Burglariter Felonice Murdravit and the like That proditorie implies it that 't is plainly apparent to be contrary to his Allegiance That all the whole Indictment shews it to be so 't is not weighing his Allegiance 't is against his true natural Liege Lord and Sovereign That it appears he was a natural born Subject That the very Words themselves are only of Aggravation That they may as well be laid precedent to the Fact as in the Conclusion That here is that which is Tantamount That Sir Henry Vane's Indictment was thus Cotton and Messingers Sid. 328. The Scotch Officers in Suffolk Lamberts Hackshams Titchburns and many more That 't is true the Fact in the Indictment ought not to be made good by Intendment or Inference but if there be Words which shew that the Party owed Allegiance it s enough An alien Enemy is not indictable in this manner but here 't is shewn That he is a Person capable of committing Treason and that the Act done was against his Duty and Obedience which he owed as a Subject That many Precedents have been thus That nimia subtilitas in jure reprobatur That a Certainty to a common Intent is sufficient Longs case That in 2 Rolls abr 82. contra coron ' et dignitat ' suas is held not necessary wherefore and for other Reasons then urged 't was prayed That the Reversal might be reversed and the King restored c. On the other side it was argued That this Reversal was just That this Arraignment being Joint for want of separatim makes the Proceeding Erroneous That the Precedents do use the Word separatim and abundance of Entries were mentioned as Leach and Ruthford et al' 28 Hen. 8. Dudely Gates and Palmer 1 and 2 Phil. and Mar ' Throgmorton and Weddall 2 and 3 Ph. and M. Peckham and Daniel eodem Anno. Blunt and Danverse 44. Eliz. Earl of Ess and S. eodem Anno. Guy Fawks and Sir Everard Digby 3 Jac. 1. Harrison Scot and the other Regicides 12 Car. 2. 1660. Green Berry and Hill for the Murder of Sir E. Godfrey 1678. Ireland Pickering and Grove 31 Car. 2. rot ' 242. Whitebread Fenwick et al' 32 Car. 2. rot ' 224. Johnson et al' 2 Will. et Mar. num ' 57. and Lord Preston and Ashton Trin. 3 Will. et Mar. n. 16. separatim allocut ' and many more Besides the Nature of the thing is such as requires a several Arraignment because they may plead several Pleas and they are several Offences and tho' they plead in this Case severally that 's not enough for they ought to be askt severally But this was not so much insisted on as the next Error the Omission of secreta in the Judgment 't is part of the Judgment upon the 25 Edw. 3. for compassing c. tho' for coining 't is only to be drawn and hanged according to Morgan's Case Cro. Car. 383 Stamp 182. 3. Inst 15 17. Finch's Law lib. 2. cap. Treason they are all secreta membra abscindant ' as well as interiora all common Books have it as Bolton's Justice of the Peace tit Prefidents of Indictments for High Treason 38 42. Dalton's Justice p. 335. Sheppard's Epitome tit Crown and all those common Abridgments c. Lord Preston and Ashton's was drawn by good Advice Harrison and al' 12 Car. 2. Ireland Pickering and Grove 1678. Whitehread's 1679. Walcott's 1683. Langhorn's 31. Car. 2. Colonel Sidney's 1683. The Earl of Stafford's in 1680. was thus upon Debate and Consultation with all the Judges Dominus Rex versus Owen 1 Rolls Rep 185 186. there 't is mentioned But then it was chiefly insisted on That the Reversal was to be maintained for the Error in the Indictment that contra ligeantie sue debitum was the general Form that all the great Men in all Ages who had been of Counsel for the Crown had inserted it That all the Indictments the first Assizes after Monmouth's Rebellion which were drawn or perused by Sir H. Poll ' had this Conclusion That Ashtons Crosses Gaunts Cornishes Earl of Staffords Batemans Ayliffs Goodenoughs Hone Blague Rowse Armstrong Sir Robert Peyton Langhornes Lord Bellasis Venner Harrisons Faukes Sir Everard Digbyes Patricius Dolphie Pasch 41 Eliz. John Tipping 34 Eliz. are all thus and the Prints are so likewise 3 Inst 214. Fitzh Justiee pag. 218. Plowd 387. Coke's Entries 361. Cro. Car. 120 122 123. and a great number of Particulars more which might be cited Then 't was urged that Reason doth require this for that Treason is punishable as a Breach of Allegiance that that is the very Essence of Treason that if the Fact be not alledged to be against his Allegiance 't is not Treason that 't is by reason of his Allegiance that he can commit Treason and therefore 't is that an Alien Enemy who was never protected can't commit Treason because he owed no Allegiance and there may be many Acts done which look like a levying of War without any Breach of Allegiance and for that was quoted King John's Charter made at Rumney Mead 18 die Junii Anno Regni 17 Rot. Pat. 17. m. 13. a Transcript whereof is in Matthew Paris 245. Anno 1215. which Charter was ratified four times within nine years after The first Confirmation was granted 1 Hen. 3. and probably at his Coronation for there was a Charter dated at Glocester 6 Febr. Rot. Pat. 1 Hen. 3. m. 13. that they should enjoy Libertatibus Regno nostro Anglie a Patre nostro et nobis concessis In the second year of his Reign he sends a Mandate to the several Sheriffs to proclaim this Charter amongst others Rex c. Salutem Mittimus tibi Chartas de Libertatibus c. Mandantes quatenus eas legi facias in pleno comitatu tuo Dat' 22 Febr. Rot. Claus 2 Hen. 3. Then was cited Fox's Acts and Monuments ad Ann. 1218. That after Michaelmas this King held a Parliament at Westminster wherein he confirmed and ratified by his Charter all the Franchises and Liberties which were made and given by King John his Father In the seventh year of his Reign viz. the Sixteenth of his Age he took the Government into his own Hands and then the Archbishop of Canterbury in open Parliament doth mind him of the Oath sworn in his Name by the Earl of Pembroke Rectore Regis Regni and others at the Pacification between him and the Dauphin that he would restore and confirm those Liberties to his Subjects for which the War broke out between his Father and the Barons Then was quoted what Henry the Third promised when he invited Henry de Lucy to come in to him 1 Hen. 3. m. 16. which is in very strange language if his Allegiance had been broken Then was cited Sadler
and one of these is necessary to prevent a Survivorship Wherefore upon the whole it was prayed That the Judgment should be Reversed On the other side it was argued with the Judgment That the same was Legal and ought not to be Reversed for that as to the last thing stirred it must be a Tenancy in Common the words Share and Share alike imply a Division or Partition in esse or in future and it hath always been so construed The distinction between divided and to be divided hath been long since Exploded as importing no difference Then it was argued That here was only an Estate for Life given by this Clause to the Survivors that a Devise of the Share is the same with the Devise of the Land that the Share doth not signifie the Estate or Interest but the Quantity or Proportion of the Thing here are no words to vest the Inheritance in the Survivors there are proper words to give an Inheritance to the Children and there are no such proper words used to divest it out of them and to give it to the Survivors upon the decease of any one of them under Age and Unmarried The Share or Part can only be the Thing it self not the Estate in the Thing and 't is all consistent if it be adjudged an Estate for Life Besides In the last Clause when he enjoyns the Heir to permit the Devisees to enjoy their Interests and in case he do not discharge the Fee-farm Rent he gives the rest of his Shares to and amongst all other of his Children and their Heirs equally to be divided among them The adding of the word Heirs in this Clause and omitting it in the former shews the Testator to have a different meaning in the first from what he had in the last Then were cited several Cases to prove that totam illam partem carried only the Thing devised not the Interest which the Devisor had therein 3 Leon. 180 181. 3 Cro. 52. 2 Leon. 156 56. and 1 Rolls Abridg. tit Estate 835 836. 1 Cro. 356. Latch 40. and as to the 150 l. appointed to be paid for to bind Benjamin Apprentice 't was said That the same was to Issue out of the Rents and Profits And therefore upon the whole it was prayed That the Judgment might be affirmed and it was affirmed accordingly Dominus Rex Versus Episcop ' Cestr ' and Richard Pierse Esq WRit of Error upon a Judgment in a Quare Impedit in C. B. given for the King and affirmed in B. R. The Case upon the Record was to this effect Mr. Attorney General declares That Queen Elizabeth was seized of the Advowson of the Church of Bedall ut de uno grosso per se ut de feodo jure in jure corone sue Anglie and being so seized did such a Day in the Twelfth Year of her Reign present to the said Church then vacant John Tymms as by the Inrollment of c. appears that he was instituted and inducted that Queen Elizabeth died seized of such her Estate of and in the Advowson aforesaid that the same descended to Jac. 1. per quod he was seized of the Advowson of the said Church ut de uno grosso c. That the Church became void by the death of Tymms and that King presented Dr. Wilson that he was admitted instituted and inducted that King Jac. 1. died seized of such his Estate in the said Advowson and the same descended to Car 1. and he became seized and the Church was again void by the death of the then Incumbent and Car. 1. presented Dr. Wickham that Dr. Wickham died that thereupon one John Pierse not having any Right to present to the said Church sed usurpando super dict' nuper Regem Car. 1. did present one Metcalfe who was inducted that Car. 1. died seized that the Advowson descended to Car. 2. that the Church became void by the death of Metcalfe that Car. 2. presented Samways who was inducted that Car. 2. died seized and the same descended to Jac. 2. who became seized ut de uno grosso c. who being so seized de regimine hujus regni Anglie se dimisit by which the said Advowson came to the present King and Queen and they were and are now seized of it ut de uno grosso c. That the Church became void by the death of Samways and it belongs to the King and Queen to present a fit Person but the Defendants hinder them ad dampnum c. The Bishop pleads that he claims nothing in the Advowson but as Ordinary c. The other Defendant Richard Pierse pleads That the King occasione premissor ' ipsum pred' Richardum impetere seu occasionare non debet quia dicit quod bene verum est quod Car. 1. devenit fuit seisitus of the Advowson aforesaid ut de uno grosso per se ut de feodo jure modo forma pred' in narr ' pred' specificat ' and did present Wickham his Clerk who was inducted But he says further That the Church being so full of the Incumbent and Car. 1. so seized as aforesaid the said Car. 1. by his Letters Patents c. bearing date at Canbury 19 Julij anno regni sui decimo quarto quas idem Richardus hic in curia profert ex speciali gratia certa scientia mero motu for himself his Heirs and Successors did give and grant cuidam Willielmo Theckston adtunc armig ' postea milit ' the Advowson aforesaid to hold to him and his Heirs to the use of him and his Heirs for ever prout per easdem Litteras Patentes plenius apparet by virtue of which said Grant the said Theckston was seized of the Advowson in question ut de uno grosso c. And he being so seized the Church became void by the death of Wickham posteaque ac eodem tempore quo superius in narr ' pred' supponitur pred' Johannem Pierse usurpasse super pred' nuper Regem Car. 1. He the said John Pierse usurping upon the said William Theckston to whom of right it then belonged did present the said Metcalfe who was accordingly instituted and inducted by which the said John Pierse was seised of the Advowson aforesaid and being so seized and the Church then full he the said Theckston did by Indenture 18 April 18 Car. 1. release to the said John Pierse and his Heirs all his Right Title Claim c. by which the said John Pierse became seized and he dying seized the same descended to the Defendant Richard as his Son and Heir by which he became seized and then the Church became void by the Death of Metcalf and continued so void for a Year and half and more and by that Reason Car. 2. to the Church so void per lapsum temporis in defectu Patroni Ordinarij et Metropolitani jure Prerogative sue Regie eidem Car. 2. devolut ' did present Samwayes his
Clerk who was inducted and afterwards died and the Church being so void the Defendant presented one Scroop his Clerk absque hoc quod praed ' nuper Rex Car. 1. obiit seisitus of the Advowson aforesaid in manner and form as the Attorney hath declared Et hoc paratus est c. unde petit jud ' et breve Episcopo c. Scroop pleads the same Plea mutatis mutandis The Attorney General craves Oyer of the Letters Patents produced in Court and they are read to him and are to this effect They recite That Queen Elizabeth had by her Letters Patents Anno 13. Regni sui granted to then Earl of Warwick all those Mannors of Bedall and Ascough c. and all Advowsons and Rights of Patronage thereunto belonging c. rendring a Rent and that Jac. 1. had granted the Rent to Sir Christopher Hatton et al' and that the said Mannors and Rents by good Conveyances in the Law had come to Sir William Theckston Knight and that he then had and held the same to him and his Heirs then 't is Know ye That we for divers good Causes and Considerations and of special Grace c. do ratifie and confirm to him the said William Theckston and his Heirs c. all those c. then it follows That whereas the said William Theckston by Virtue of the said Letters Patents made to the said Earl of Warwick and lawful Conveyance of the Premisses to himself made doth claim to have the Advowson of the Church of Bedall aforesaid according to the Tenour and Intent of the said Letters Patents and whereas he the said King Car. 1. upon the Death of one John Petty had by lapse presented Wilson and after his Death the said Theckston claiming the Right of Presentation the said King ad dictam Ecclestam sic vacantem ut ad presentatioâ—em snam pleno jure spectant had presented Dr. Wickham and that the said Theckston to recover his Right had brought his Writ of Quare Impedit upon which Issue was joyned That afterwards it was agreed between Theckston and Wickham that Wickham should enjoy it during his Life and that Theckston and his Heirs should have it quietly for ever after prout ex informatione dicti Wickham nostri Capellani in ordinario accepimus Nos igitur volentes That the said Presentations of the said Wilson and Wickham or either of them or their or either of their Institution and Induction should not hurt the said Theckston's lawful Right of presenting to the said Church for the future and it is our further Intention That the said William Theckston his Heirs and Assigns shall freely and peaceably have and enjoy the said Advowson of the said Church of Bedall according to the Tenour and true Intent of the said Letters Patents granted by the said Queen to the said Ambrose Earl of Warwick any Defect or Defects in the same Letters Patents notwithstanding And then follows the Grant it self in these Words Sciatis igitur quod nos ex uberiori et speciali gratia nostra c. Know ye therefore That we of our more abundant and special Grace and of our certain Knowledge and meet Motion have given and granted and do by these presents for our selves our Heirs and Successors give and grant to the aforesaid William Theckston the Advowson Donation free Disposition and Right of Patronage of the aforesaid Church of Bedall and all our Right Estate Title Interest and claim whatsoever of presenting to the said Church whensoever or howsoever it shall become void Quibus lectis anditis the Attorney General demurrs and the Defendant joyns and Judgment in C. B. pro Domino Rege upon this Reason only that this Grant was void the Advowson being in gross and nothing was intended to pass but an Advowson Appendant and so the King was deceived and upon a Writ of Error in B. R. the Judgment was affirmed upon another point viz. That the Grant pleaded was to William Theckston then Esq and afterwards Knight and the Grant set forth upon Oyer was to William Theckston Knight and there were Three Judges of Opinion with the Patent and one only against it and one Judge of Opinion with the Plaintiff in the Error as to both the Validity of the Patent it self and the Identity of the Person named in the Plea and Patent And now it was argued for the Plaintiffs in the Writ of Error That this Judgment was erroneous and first it was answered to the Objection of the Variance between Knight and Esq and it was said That in case of a Title of Worship the want of it could never viciate a Grant that even in Indictments upon the Statute of Additions a Gentleman may be called Esquire and so e ' contra and thus is 2 Iust that here constat de persono there 's nothing doth appear to shew them to be different that in case of Feoffments this Pretence will not hurt because the Person is ascertained and here 't is likewise the same it is William Theckston then Esq and afterwards Knight 't is but one Man they are two different Affirmations concerning the same Person that in the Case cited on the other side of the Earl of Pembroke in Jones's Rep. and in 1 Cro. 173. and Littlet 191.223 Richardson and Hutton are of Opinion That such Grant is good then 't was said That 't would be very hard to intend them several Persons in order to avoid a Grant that Veritas nominis tollit Erroreâ—â— demonstrationis Persone that he was William Theckston that if it had been said concessit Wilielmo Theckston generally that would have been sufficient and his being an Esq doth not exclude his being a Knight so that 't is not a false Description 25 Edw. 3.19 a Writ was abated because shewn that they were two Persons but held that if it had appeared that they had been but one 't would have been well Then was cited the Major of Lynnes Case 10 Rep. 126. 'T is true this is a Name or Title of Dignity to some purposes but not to all It must be agreed to be so upon Originals and Indictments and there is a very good reason for it because in that Case a greater Certainty is required that one Man may not suffer for or instead of another but in Case of Grants any Description of the Person is sufficient besides if a Name be mistaken in a Writ or Indictment another may be sued or preferred by the true Name but a Man cannot of common Right demand a new Grant tho' this be a Grant from the Crown 't is the same case for the King's Grant shall be taken most beneficially for the Support of his Honour 6 Rep. 6. that here 's no COlour to pretend two William Theckstons Then it was said That this at most was only an Addition of Enlargement to his Name not parcel of the Name it self for no more goes to that than Christian and Sirname then 't was said 't
after Judgment affirmed in the Exchequer Chamber Or if that proceeding in the Exchequer Chamber doth not come in lieu of Error in Parliament according to the Statute of Eliz. William Bridgman al' Versus Rowland Holt al' A Writ of Error and Petition in Parliament The Case below was thus William Bridgman brings an Assize for the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench and the Plaintiff declares that the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench was time out of mind granted and grantable by the Kings and Queens of this Realm and that King Charles the Second by Letters Patents under the Great Seal of England Dated the Second of June in the Five and twentieth Year of his Reign after a Recital that Robert Henley and Samuel Wightwick were duly admitted to this Office for their Lives granted this Office upon the Petition of Eliott to Silas Titus so soon as it should become void and that Wightwick was dead and Titus had surrendred his Patent did in consideration of Service done by the Earl of Arlington grant this Office to the Plaintiff and his Heirs for the Lives of the Earl of Arlington Duke of Grafton and Dutchess of Grafton and the longer liver of them from and after the Death Forfeiture or Surrender of Sir Robert Henley and that Sir Robert Henly was dead and that thereupon the Plaintiff became seized and was seized of the Office till the Defendants did disseize him c. The Defendants pleaded that they did not wrong or disseize the Plaintiff Upon the Trial of this General Issue at the Bar of the King's-Bench before the three puisne Judges the Chief Justice then sitting near the Defendant's Counsel upon a Chair uncovered the Plaintiff gave in Evidence the Letters Patents of 2 June 25 Car. 2. Then it was proposed by the Counsel for the Defendant That they would prove their Allegation that the Office was anciently granted by the Kings and Queens of England as was declared but no Evidence was given besides this Patent of Car. 2. Then the Counsel for the Defendant waving the just Exception which they might have taken to the Plaintiff's Grant as to him and his Heirs which ought not to be of such an Office for that by that means it might come to an Infant They insisted upon the meer right of Granting the said Office viz. that it was not grantable by the Crown but was an Office belonging to the Chief Justice of the King's Bench and grantable by him Then to prove this it was shewn That this Officer is to Inroll Pleas between Party and Party only and had nothing to do with any Pleas of the Crown or Criminal Matters that all the Rolls and Records in this Office were in the Custody of the Chief Justice that all the Writs to certifie or remove the Records in this Clerk's Office are directed to the Chief Justice and from the nature of the Imployment 't was insisted that in truth he was but the Chief Justices Clerk and that consequently the same must be granted by the Chief Justice And for further proof it was shown by the Records of the Court that for the space of Two hundred thirty five years past this Office when void had been granted by the Chief Justice and enjoy'd accordingly under such Grants In Trin. 36 Hen. 6. Rot. 36. inter placita Reg. Anno Dom. 1458. It is inrolled thus Be it remembred that the Tenth of July this Term in the Court of our Lord the King at Westminster came William Sond chief Clerk of our Lord the King for inrolling Pleas before the King himself in his proper Person and in the same Court of his Free-will did surrender his said Office into the hands of Sir John Fortescue Kt. Chief Justice of that Court to whom of right it doth belong to grant that Office to whomsoever he pleaseth whensoever that Office shall be void during the time that the said Sir John Fortescue shall be Chief Justice and that Office doth resign and relinquish to the use of William Brome and the said Chief Justice doth accept the said Surrender and doth the same day grant the said Office to the said William Brome who is presently admitted into the said Office for his Life and sworn accordingly Mich. 1. Edw. 4. Rot. 51. Upon Brome's Surrender to Sir John Markham then Chief Justice the Chief Justice grants it to Mr. Sonde who is admitted for Life and sworn Mich. 8 Edw. 4. Rot. 26. 1467. Upon the Surrender of William Sonde to the said Sir John Markham then Chief Justice he grants it to Reginald Sonde who is admitted and sworn Reginald Sonde enjoyed this Office till the time of Henry the Seventh and then Bray came in and was Clerk till the 13 H. 7. and then came in Roper Hill 9 Hon. 8. Rot. 3. Anno 1518. Upon the Surrender of this place to Sir John Fineux Chief Justice by John Roper the Chief Justice grants the Office to Sir John Roper and William Roper who are admitted for their Lives and sworn Hill 1 2 Edw. 6. Anno 1547. Upon the Surrender of William Roper Sir John being then dead to Sir Richard Lister then Chief Justice he grants the Office to William Roper and Rute Heywood and they are admitted and sworn Hill 15 Eliz. 1573. Upon the Surrender of William Roper Heywood being dead to Sir Robert Catlin then Chief Justice he granted this Office to John Roper and Thomas Roper for their Lives and they are admitted and sworn Mich. 14 Jac. 1 Rot. 2. Anno 1616. Upon the Surrender of John Roper Thomas being dead to Sir Henry Mountagne then Chief Justice he grants the Office to Robert Heath and Robert Shute for their Lives who are admitted and sworn thereupon Hill 18 Jac. 1. 1620. Shute being dead upon Sir Robert Heath's Surrender to Sir James Leigh then Chief Justice he grants the Office to Sir Robert Heath and George Paul for their Lives and they are sworn and admitted in Court Mich. 5 Car. 1. Upon the Surrender of Sir Robert Heath and Sir George Paul to Sir Nicholas Hide then Chief Justice he grants it to Robert Henley and Samuel Wightwick for their Lives and they are admitted and sworn Trin. 1654. Upon Wightwick's Surrender to H. Roll then Chief Justice Henly being then under Sequestration the Chief Justice grants it to Sam. Wightwick and to Robert Henly Junior for their Lives and they are admitted and sworn Mich. 12 Car. 2. Upon the Surrender of Samuel Wightwick and Robert Henly to Sir Robert Foster then Chief Justice he grants it to Henly and Wightwick for their Lives and they are sworn Wightwick died soon after and Sir Robert Henly enjoy'd it under that Grant 32 years And it was observed on behalf of the Defendant That in all these Records produced and read in Court after the mention of the Surrender to the Chief Justice there are these words To
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