and where it is a collateral Suit not depending upon that Record An Action against the Sheriff for an Escape of one taken in Execution this is a dependant Action and is grounded upon the Record of the Judgment given against the Party that escap'd The Sheriff cannot aver any thing against that Record and examine it over again nor can he take any advantage of Error or erroneous proceeding in obtaining that Judgment Saunders Rep. 2 part 101. So in an Action of Debt grounded upon a Judgment or in an Audita quaerela to be reliev'd upon a Judgment And so in our Case this Action of Debt for the 500 l. is grounded upon the Conviction which must stand for truth as long as it remains in force not avoided by Error or Attaint A Writ of Error to reverse a Judgment is a dependant Action In error the Plaintiff may not averr any thing against the Record Mullens versus Weldy Siderfin's 1st part 94. Error was sued in the Kings-Bench to reverse a Judgment given in the Palace-Court And the Plaintiff in Error assign'd for Error that the Duke of Ormond who is principal Judge of that Court by Patent was not there It was agreed by the Court that it might not be assign'd for Error for it was contrary to the Record But per Cur. in an Action of Trespass or false Imprisonment which says that Report are collateral Actions he may falsifie and assign that if he be taken upon such Judgment So if a man be indicted and convict of an Assault and Battery and afterwards the person so assaulted brings his Action for the Battery this hath no dependance upon the Indictment or Conviction for it may be sued though there were no Indictment but is a distinct and collateral Suit. The Indictment and Verdict is no Estoppel nor can so much as be given in Evidence as is held by the whole Court in the Case of Sampson versus Yardley and Tothill 19 Car. 2. B. R. Kebles's 2 part 384. The like in an Appeal of Murder Kebele's 2 part 223. Another Penalty upon the Offender against this Statute of 25 Car. 2. is That he shall be disabled to sue in any Action Now suppose a person convict at the Assizes sues an Action may not the Defendant in that Action take the advantage of that Disability and plead the Conviction As in Case of an Outlawry pleaded in Disability there need not be set forth all the proceedings in that Suit wherein the Plaintiff was outlawed but he may plead the Record of the Outlawry and rely upon it and it shall not be examin'd whether there was any just cause to sue him to the Outlawry or not The Indictment the Defendant's Plea to it and the Verdict upon it have determin'd the matter of Fact that the Defendant is guilty of the Offence against this Act of Parliament The Act it self hath pronounc'd the Judgment which consists of many particulars one whereof is That the Defendant shall forfest 500 l. to him that will sue for it And the Action of Debt for the 500 l. brought by the Plaintiff grounded upon all these is in the nature of an Execution And all these put together are not several and distinct Suits but in effect all but one Suit and Process one depending upon the other The second Point is Whether the Dispensation pleaded by the Defendant be a good Bar to the Action of Debt And this is properly called The Matter in Law and the great Point of the Case for which I refer the Reader to my Argument at large POSTSCRIPT BEING SOME Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Common Pleas ENTITULED A short Account of the Authorities in Law upon which Judgment was given in Sir Hales's Case SINCE the finishing of my Argument about the Power of Dispensing with Paenal Statutes a Book came to my hands touching the same subject entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales his Case written by Sir Edward Herbert Chief Justice of the Common Pleas in vindication of himself And although I am of opinion that the substance of all the Arguments contained in the said Book are fully answered in my aforesaid Discourse yet I hold it necessary to make some Animadversions upon the said Book and to point out readily to the Reader the several Pages of my Discourse wherein the Arguments of the Chief Justice are more directly and particularly treated of and answered And there being great Reverence justly due to a Person that bears so high a Character as also to a Judgment given in that Superiour Court of the King's Bench and by advice of all but two of the rest of the Judges as I now hear some short Apology had need be used for that freedom I have taken to animadvert upon it being as I am but in a private station In short therefore I have not undertaken it out of any vain conceit of my own Abilities but out of a sincere desire to inform such as in the approaching Parliament are like to have this great Case in Judgment before them and some may possibly not be at leisure as I have been to study the Case the matter being of a mighty importance Nor have I entred the Lists upon any contentious humour or taking any advantage of the late Happy Change of publick Affairs I am I thank God more inclin'd to commiserate the Distress that may befal any persons by the change of the times it having been my own case so lately although they differ from me in Judgment or Interest I am very far from insulting over any whatever hard usage I my self have met with Nemo confidat nimiûm secundis Nemo desperet meliora lapsus My Apology is this 1. I was engaged in the Argument before the coming forth of this Book and it happening into my hands before my publishing of my Discourse I could not decline the observing something upon it without being suspected to have given up the Cause 2. The Lord Chief Justice himself hath by his Book given fresh occasion fairly to discuss the point again by declaring that he expects as we all do that it will receive a disquisition in Parliament 3. And as the Chief Justice hath endeavour'd with as much as can be said to give the World satisfaction in the justice and right of the Case to maintain the Judgment given so he is well known to be of that ingenuity and good temper and candour as willing to receive a satisfaction if any further Argument to the contrary may be so happy as to convince him The Chief Justice Herbert pag. 6. gives us the Definition of a Dispensation out of Sir Coke's 11th Report fol. 88. viz. Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus And again Dispensatio est mali prohibiti provida relaxacio utilitate ceu
of this Prerogative and Power of dispensing with a disability impos'd by Act of Parliament for I do not purposely dispute it in any other Case but as they are coincident with this The first that we meet with is that of 2 H. 7. fol. 6. and it was by all the Justices in the Exchequer-Chamber The Case thus King Edward the Fourth granted the Office of Sheriff of a County to the Earl of Northumberland for the Life of the Earl and the Justices held the Patent good there being a Non Obstante in it to the Statutes Let us look into the Statutes that forbid a Sheriff to continue in his Office longer then one Year There had been several ancient Statutes made to that purpose but they all prov'd to be of little effect for Patents were still granted to hold the Office of a Sheriff for a longer time than one Year At length came the Stat. 23. H. 6. c. 8. which recites the former Statutes forbidding any Persons continuance in the Office of Sheriff above one Year and observing the great Oppressions and Abuses to the People that did arise from it and how that yet they were granted contrary to those Statutes This Statute therefore of 23 Hen. 6. ordains that those Statutes shall be duly observ'd And further ordains That if any occupy that Office contrary to those Statutes or to the effect or intent of any of them he shall forfeit two hundred Pound yearly as long as he occupieth contrary to any of those Statutes and that every Pardon granted of that Forfeiture shall be void and that all Patents made of the Office of Sheriff for Years or any longer time shall be void any Clause or word of Non Obstante in any wise put or to be put in such Patents notwithstanding and every such Person is thereby disabled to bear that Office. Nothing could be penn'd stronger than this Statute and it is a Law made by the Supream Legislative Power of the Nation and it expresses the former granting of Non Obstante's to be a great abuse and to be contrary to Law. Yet contrary to the express words and clear intent and meaning of this Statute did all the Judges resolve in 2 H. 7. That by a Non Obstante a Patent for a longer time than a Year should be good of the Sheriffs Office. The King and both Houses were of Opinion that they could make a Non Obstante in such Case void The Judges are of a contrary Opinion that a Non Obstante shall make void the Statute Here is an Inferiour Court over-ruling and controuling the Judgment of a Superiour Court. The Judges who are but Jura dicere contradict those who have the Power Jura dare as well as Jura dicere and of Correcting the Errors of the highest Court in Westminster and controuling their Judgments The Statute was a meer idle nugatory thing if it were not to restrain the granting of a Non Obstante if it did not that it did nothing The King himself alone if he had pleas'd could without any Act of Parliament have reform'd the Abuse by refusing to pass any such Patents for a Sheriffs continuing in his Office longer than a Year But the King was sensible of the Abuses and therefore willing to be restrained from passing any more such Patents and to avoid any importunity that might be used for the obtaining any such Patents and therefore consented that a Law should pass to make such Patents void And after all shall the King if he pleases still make the like Grants Why then the Act was of no manner of use and operates nothing and the Resolve of the Judges has made the Act a meer idle vain thing But the twelve Judges in 2 H. 7. have so resolv'd and the only use they would allow to all these Acts of Parliament is no more than this that if the King grant a Patent to one of the Sheriffs Office for more than one Year and there be no Non obstante in the Patent that then for want of a Non obstante the Patent should be void by those Acts of Parliament which otherwise would have been good had not those Acts made them void But how easie would it be for one that obtains such a Patent to get the Non obstante to be inserted and who would accept such a Patent without a Non obstante and to whom would the Non obstante be denied to whom such a Patent is granted the Lord Hobart in the Case of Needler against the Bishop of Winchester fol. 230. says it is denied to none and that it is in the power of the Attorney-General The Reasons given by the Judges in 2 H. 7. for that resolution are because the King had always used such a Prerogative of dispensing with the Acts of Parliament that required the true value of the Lands and the certainty of the Lands to be mentioned in his Grants of Lands and with the Acts concerning the shipping of Wool and pardoning of Murder without express mentioning of the Murder These Cases are nothing alike but of a trifling consideration in respect of the Act we have in hand of 25 Car. 2. And in these Cases the Penalty and Forfeitures are given to the King and they concern the King's profit only to dispence with them but in our Case the Safety of the Government salus populi and the maintaining of the true Religion establish'd by Law are all concern'd and so the Case is not alike And to compare this with those Cases is parvis componere magna This Opinion and Resolution of the Judges in 2 H. 7. has been the Foundation of all the like Opinions that have since that time been given of the King's Power of Dispensing with Disabilities and Incapacities impos'd by Acts of Parliament Upon what ground the Justices held the Patent of the Sheriff's Office good to the Earl of Northumberland for Life does not appear whether because it had formerly been an Office of Inheritance and so within the Exception in the Statute of 23 H. 6. or whether by virtue of a Non obstante to the Statutes as Ratclif only argues for the rest say nothing of the Non obstante Some Resolutions have been to the contrary of that of 2 H. 7. as in the Case that I cited of the King against the Bishop of Norwich in the Lord Hobart's Reports and the Case of Sir Arthur Ingram where it was adjudged that the King could not dispence with a Disability And the Book of 2 R. 3. fol. 11 12. concerning Waterford in Ireland is of the King's Power to dispence with an Act of Parliament where the Forfeiture is given only to the King so it comes not home to our Case This Resolution of the Judges in 2 H. 7. was the Precedent and leading Case to all the subsequent Opinions and was the Foundation of them and they all must stand and fall by it Now it will be very
pleaded it And he is now Convict according to the direction of the Act of 25 Car. 2. so that he now comes too late to plead it to this Action for he cannot falsifie the Conviction nor averr any thing against the Record of it and bring the Fact to be tryed over again in this Action but is concluded and estopp'd in Law to say any thing to the contrary of that Record by which he is found guilty of the Offence against this Act of Parliament The Defendant either did plead this Dispensation or Pardon to the Indictment in discharge of the Indictment and it hath been over-ruled by the Judges at the Assizes as by Law it ought to be being no good Plea Or he might have pleaded it if he had been advis'd it had been a good Plea. And not having done it he hath elaps'd his time and now comes too late to plead it being Convict of the Crime To this it was objected as I hear That the Plaintiff if he will take the advantage of an Estoppel ought to have set it forth by way of Replication to the Defendants Plea and to have relied upon it For the Rule is That he that pleads an Estoppel must rely upon it as an Estoppel It is true if a man will plead an Estoppel he must rely upon it But in this Case the Plaintiff does not plead the Estoppel but the Estoppel appears by the Declaration and the Defendant's own Plea together so that there was no need for the Plaintiff to set that forth by way of Replication which doth sufficiently appear by the Defendant's own Plea viz. That he did not take the Tests within the time limitted by the Act and the Conviction is confess'd by his Plea and joyning in Demurrer If a man recover a Debt upon a Bond and before Execution dies if his Executor sue a Scire Facias upon that Judgment the Defendant cannot plead any Plea that he might have pleaded before as Non est factum or by Dures or the like for he is concluded by the Judgment In Jason and Ketes Case in Siderfen's Reports fol. 43. by Bridgman Chief Justice a man shall never help himself by Audita querela tho' that is an equitable Suit at Law for any matter that he might have pleaded before There is no Estoppel in this Case for the Conviction is upon an Indictment which is the King's Suit and this is the Suit of another viz. the now Plaintiffs and so they are two distinct Suits The Conviction upon the Indictment is an Estoppel against the Defendant himself of which any man may take the advantage and he himself shall never be admitted to averr against it As in Maynyes Case in Leonard's first part fol. 3. An Attainder for Treason is an Universal Estoppel of which any Stranger may take the advantage not only against the Party attainted but against his Wife too if she sue for Dower And it does not run in Privity By Manw. Ch. Bar. Where a man is attainted by his own Confession of a Felony a Stranger is not Estopp'd to say he was not guilty But if A. commit Felony and after enfeoff I. S. of his Land and after A. is attaint of this Felony by Verdict there I. S. is Estopp'd and may not averr that A. was not guilty because he claims under him much less shall A. himself averr against the Verdict that he is not guilty If a man be acquitted of Felony all the World says Grevil in Kellow Rep. 81. b. is Estoop'd to say the contrary So vice versâ if he be convict by the same reason As to that which is objected that the Conviction is upon an Indictment which is the King's Suit but this is another Suit and therefore the Verdict shall not conclude the Defendant in this Suit. This is not another Suit but in effect an Execution upon the Conviction and grounded upon that Record and therefore not meerly a new Suit but a dependant Action as a Writ of Error or an Audita quaerela or a Scire Facias upon a Record are dependant Suits or an Action of Debt upon a Judgment The Act of 25 Car. 2. c. 2. hath made it Criminal in any person after his neglect of taking the two Oaths or of the Sacrament by the times limited to execute any such Office or Place of Trust and for such Offence hath made him indictable at the Assizes and upon a Conviction the Offender incurs among other Penalties the forfeiture of 500 l. and gives it to any one that will sue for it in an Action of Debt So the Statute hath directed the method of trying the Offence and of convicting the Offender by Indictment at the Assizes And if he that sues for the Forfeiture shall be driven to prove the Offence over again then the Conviction at the Assizes serves for nothing but was all in vain And such Construction defeats the intention of the Law-makers for they intended this for the only Tryal and not to have several Tryals for suppose it should be tryed again in this Action and a Verdict pass for the Defendant here shall be Tryal against Tryal and Verdict against Verdict And such Construction ought to be made of Acts of Parliament as may not elude but agree with the intent of the Law-makers and so as that no Words Clause or Sentence shall be altogether idle and insignificant And this Conviction upon the Indictment is the very ground of the Action of Debt brought by the now Plaintiff for the words of the Act are And being thereupon lawfully Convicted upon any Indictment every such person shall from thence-forth forfeit 500 l. So that till there be such a Conviction there is no Forfeiture incurr'd of 500 l. nor no Action can be brought for the 500 l. The Offence must be prov'd and determin'd before any Action can be brought and therefore the proof of the Offence whereof the Defendant is convict must not be made in this Action over again if it must what serves the Conviction for Suppose the Plaintiff here had brought his Action after the neglect of the Defendant of taking the Oaths and of receiving the Sacrament and his acting in his Office after such neglects and before any Conviction upon Indictment and had only averr'd that the Defendant had so neglected and yet acted would this Action have been well brought Or suppose there had been a Conviction but the Plaintiff had not set it forth in his Declaration but had only averr'd the Offence committed would this have been a good Declaration Surely it would not This proves that the Record of the Conviction is the very ground and foundation of this Action and the Action would not lie without such Conviction so that it is not a meer new Action but a dependant Action And the usual difference is where the Action is a dependant Action depending upon a Record and grounded upon it