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
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
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
whom of right it doth belong to grant that Office whensoever it shall be void It was then further insisted on and proved That there are in the nature of Clerks three considerable Officers of the Court of King's Bench The first and chiefest is the Clerk of the Crown called sometimes Coronator Attornat ' Domini Regis c. his Business is to draw all Indictments Informations c. in Pleas of the Crown This Officer being the chief Clerk in Court is always made by Patent under the Great Seal The second Officer is this the Prothonotary or chief Clerk for inrolling Pleas between Party and Party in Civil Matters He and his Under-Clerks do inroll all Declarations Pleadings c. in Civil Causes especially where the Proceedings are by Bill This Clerk files in his Office all Bills Declarations c. and all the Writs of this Court in Civil Matters are made by him and his Under-Clerks and tested by the Chief Justice And he hath the custody of all Returns of Elegits Executions Scire Facias's and the filing of all Villes every of which are in the Eye and Judgment of the Law in the hands of the Chief Justice whose Clerk this Officer is The third is the Custos Brevium who keeps all the Rolls and Records of Judgments in this Court which are also said to be in the custody of the Chief Justice And this Office when void is in his Gift and Disposal It was further shewn on the behalf of the Defendants That in the Statute of Edw. 6. against the Sale of Offices there is a Salvo to the two Chief Justices and Judges of Assize to dispose of the Offices in their disposition as they used formerly And ever since that Statute these two Offices of chief Clerk to inroll the Pleas c. and the Custos Brevium have without controul been disposed by the Chief Justice of the Court of King's Bench. And it is also observed That in the Grant of this Office to Mr. Bridgman the Plaintiff it is recited that Henly and Wightwick were debito modo admitted to this Office and yet they never had any Grant from the Crown nor any other Grant except that from the Chief Justice before mentioned Then to prove the Defendant's Title to the Office the Grant of the now Chief Justice to them for their Lives was produced and read and proved that they were admitted and sworn To answer all this Evidence there was produced the Copy of an Act of Parliament which was made in 15 Edw. 3. to this effect It is consented that if any of the Offices aforesaid which are other great Offices mentioned in the Act or the Controller or chief Clerk in the Common Bench or King's Bench by Death or other Case be ousted of their Office the King with the consent of the great Men c. shall put another fit person in such Office From whence the Plaintiff's Counsel would have inferred That the King had a right to grant this Office and that this Act was declaratory of such his Right and that all the Grants from the Chief Justices ever since that Act were but Usurpations on the Crown and that no Usage of granting it by the Chief Justices could prevail against the King's Right To this it was replied That the Act was repealed as did appear by the Record it self as well as by their own Copy produced And for a further Answer 't was said That the Office in question was not the Office mentioned in that Act for that Act mentions the chief Clerk of the King's Bench which is the Clerk of the Crown and so called in the 2 H. 4. the Statute against Extortion and he is in reality the chief Clerk in that Court and hath precedency of this Officer both in Court and elsewhere And that this Officer is not called chief Clerk in the King's Bench altho' he is the chief for inrolling of Pleas Civil in that Court And the constant Usage explains the meaning of that Act. And that the Officer called chief Clerk was meant to be the Clerk of the Crown for that that Office hath been always granted by Letters Patents according to that Act And the Office in question was never enjoyed one day by virtue of a Grant from the Crown The Defendants did further insist That it was a Scandalous Imputation upon all those chief Justices who were Persons of Probity and Virtue and had clear Reputations to surmise that they imposed and usurped upon the Crown as they must all have done if the right of granting this Place be in the King And Sir Robert Heath that was the King's Attorney took a Grant of the Office in question from the Chief Justice and upon his Admittance the right of the Chief Justice to grant it is affirmed upon Record Then all this Evidence on both sides being given and the same being strong on the Defendants behalf the Court proposed to the Plaintiff's Counsel to be Nonsuit which they would not but prayed the Court to direct the Jury some of them saying that they would take another Course And then the Court did briefly sum up the same and particularly the Evidence of the Act 15 Edw. 3. and what was urged from it by the Plaintiff and the Answers made thereto and left the Matter to the Jury upon the whole The Jury withdrew and after some time gave a Verdict for the Defendants Upon this Verdict the Counsel for the Plaintiff prayed leave to bring in a Bill of Exceptions and produced in Court and tendred to the three Judges to be sealed a Parchment Writing in form of such a Bill in which after a Recital of the Declaration and Issue in the Cause 't is alledged That the Plaintiff's Counsel produced in Evidence the Grant of the Office to the Plaintiff and that they shewed to the Court and Jury that the Office is of the Grant of the Crown And that to make out the Right of King Charles the Second to grant this Office to the Plaintiff they gave in Evidence the 15 Edw. 3. which in the Bill is set out at large and is in Substance as is before set forth And 't is further alledged in the Bill That the Justices refused to allow admit and receive the Allegations and Matters given in Evidence as sufficient to prove the Plaintiff's Title to this Office by reason whereof the Jury found That the Defendant did not disseize the Plaintiff and prays that the Justices would put their Seals to it according to the Statute of Westminster 2. cap. 31. The Justices upon reading this Bill did refuse to Seal it 1. Because 't is asserted therein That the Plaintiff's Counsel did show that this Office was of the Gift and Grant of the King whensoever it should be void whereas there was no such Evidence to show any such Right in the King offered or pretended to besides the Patent in question and the Act of Edw. 3. 2. That the Judges refused to allow admit and