than many of his Predecessors have done particularly that most Learned and Reverend Judge the Lord Hobart whose single Opinions in many Cases publish'd being built upon excellent Reason carry great weight with them at this day whether the Author may be so fortunate Time must determine But I hope such as shall think fit to oppose such of his Opinions wherein he is singular will first Reverse the Reasons of them for if they be not vanquish'd the Conclusions thence deduc'd must prevail So Reader I commit him to you heartily wishing you the benefit design'd by this Publication WE all knowing the great Learning Wisdom and Integrity of the Author Do for the Common Benefit allow the publishing of these Reports and Arguments in the same Letter as now they are Printed Finch C. Ri. Raynsford Fra. North. Tho. Twisden W. Montagu W. Wylde Tim. Littleton Hugh Wyndham Rob. Atkyns Edward Thurland V. Bertie Tho. Jones Will. Scroggs REPORTS OF S ir John Vaughan LORD CHIEF JUSTICE Of the COURT of COMMON-PLEAS Hil. xvii xviii Caroli 2. Reg. C.B. Ro. 1032. John Tufton Knight and Baronet Plaint vers Rich. Temple Knight of the Bath and Bar. Chamberlain Hammersley Cl. John Bish of Lich. and Cov. Defen In a Quare Impedit for hindring him to present a fit Person to the Vicaridge of the Church of Burton-Basset in the County of Warwick being void and belonging to his Gift THE Plaintiff sets forth That whereas Thomas Temple Kt. and Bar. was seised of two third Parts of the Mannor of Burton Basset to which one third Part of the Advowson of the Vicaridge aforesaid that is to present a fit Person to the same Vicaridge the first time when the same then after should happen next to be void And after the same first Presentation then every third turn of the same Vicaridge being void for ever appertains and did appertain in his Demesne as of Fee And one Edward Wootton Kt. Lord Wootton was seised of one other third part of the Mannor aforesaid and of one third part of the Rectory Impropriate of Burton Basset To which third parts one other third part of the Advowson of the Vicaridge aforesaid that is to present a fit Person to the same Vicaridge the second turn when the same Vicaridge then after should happen next to be void And after the same second Presentation then every third turn of the same Vicaridge being void for ever doth appertain and then did appertain in his Demesn as of Fee That the said Thomas Temple was likewise seised of another third part of the Advowson of the Vicaridge aforesaid that is to present a fit Person to the same the third turn when the same Vicaridge then after should happen next to be void And after such third Presentation then every third turn of the same Vicaridge being void for ever Ut de uno grosso per se ut de feodo jure That the said Thomas Temple being seised of the two third parts of the said Mannor To which c. the said Vicaridge became void by the resignation of Thomas Freeman then last Incumbent That thereupon the said Thomas Temple presented in his turn to the said Vicaridge one John Reignalds his Clerk who was admitted instituted and inducted thereto in the time of the late King James That the said Edw. Wootton being seised of the said other third part of the said Mannor and third part of the Rectory aforesaid to which c. dyed thereof so seised at Burton Basset aforesaid That after his death the said third Parts to which c. descended to one Thomas Lord Wootton his Son and Heir whereby the said Thomas Lord Wootton became thereof seised in his Demesne as of Fee That being so seised he levyed a Fine of the said third Parts to which c. in the Common-Pleas 4. Car. 1. in octab S. Martini to Nicholas Pay Esq and Reignald Pay Gent. Com-Plainants the said Lord Wootton Mary his Wife and one Henry Wootton Knight deforc That the said Fine was to the use of the said Lord Wootton and Mary his Wife during their natural lives and the longer liver of them Then to the use of the first Son of the body of the Lord Wootton and the Heirs Males of the body of such first Son begotten and so to the sixth Son successively and the Heirs Males of their bodies and so to every other the Sons of the said Lord Wootton successively Then for default of such issue to the use of Margaret Wootton third daughter of the said Lord Wootton and Mary his Wife and of such Husband with whom the said Margaret should happen to marry for term of such husbands natural life If the said Margaret should so appoint the same per aliquod scriptum sub manu sigillis suis And of the Heirs Males of her body begotten for part of her marriage portion then to the use of the Heirs of her body begotten And for default of such to the use of the right Heirs of the said Thomas Lord Wootton for ever That by the said Fine and Statute of Uses the said Lord Wootton and Mary his wife were seised of the said two third parts to which c. for their Lives with the Remainders over as aforesaid That being so seised the said Vicaridge became void by the death of the said John Reignalds And the said Lord Wootton presented to the same in his turn one John Cragg who was accordingly instituted and inducted tempore Car. 1. That the said Tho. Temple being seised of the other third part of the said Advowson in gross levyed a Fine among other things of the said third part of the said Advowson to Edward Peeter and Thomas Peeter Esquires Com-plainants and the said Thomas Temple and Hester his wife being deforceants That this Fine was so levyed to the use of one William Peeter Esq and his Heirs That the said William Peeter being seised by vertue of the said Fine and Statute of Uses the said Vicaridge became void by the Resignation of the said John Cragg and the said William Peeter presented in his turn thereto one Robert Kenrick his Clerk who was accordingly admitted instituted and inducted tempore Car. 1. That the said Tho. Temple being seised of the said two third parts of the said Mannor to which c. dyed so seised at Burton Basset aforesaid That after his death the said two third Parts to which c. descended to one Peter Temple his Son and Heir who was thereof seised and dyed so seised That after his death the same descended to the said Richard Temple his Son and Heir who was and yet is seised of the said two third Parts That being so seised the said Vicaridge became void by the death of the said Robert Kenrick which vacancy was the third vacancy of the said Vicaridge after the said first Presentation of the said Thomas Temple That the said Richard 12. Decembris anno 1654. presented to the said Vicaridge in his turn
to dispense with a Corporation as it seems K. James had in this Case when the Patent was granted but by Law cannot his Power and consequently his Prerogative is less than if he could 1. Malum prohibitum is that which is prohibited per le Statute Per le Statute is not intended only an Act of Parliament but any obliging Law or Constitution as appears by the Case For it is said The King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with cure which were mala prohibita by the Canon Law and by the Council of Lateran not by Act of Parliament 2. Many things are said to be prohibited by the Common Law and indeed most things so prohibited were primarily prohibited by Parliament or by a Power equivalent to it in making Laws which is the same but are said to be prohibited by the Common Law because the Original of the Constitution or prohibiting Law is not to be found of Record but is beyond memory and the Law known only from practical proceeding and usage in Courts of Justice as may appear by many Laws made in the time of the Saxon Kings of William the First and Henry the First yet extant in History which are now received as Common Law So if by accident the Records of all Acts of Parliament now extant none of which is elder than 9 H. 3. but new Laws were as frequent before as since should be destroyed by fire or other casualty the memorials of proceeding upon them found by the Records in Iudicial proceeding would upon like reason be accounted Common Law by Posterity 3. Publique Nusances are not mala in se but mala politica introducta though in some passages of Coke's Posthuma's they are termed mala in se because prohibited at Common Law which holds not for the reasons before given For liberty of High-ways strangers have not in Forreign Territories but by permission therefore not essential to Dominion because it may be lawfully prohibited 2. Liberty of the High-ways is prohibited with us in the night by the Statute of Winchester in some seasons of the year and in times of warr and for apprehension of Thieves in time of Peace c. The Assise of Bread and Ale is constituted by Statute and may be taken away Forestalling the Market and ingrossing hath like institution the first was prohibited by Athelstans Laws and William the First 's and may be permitted by a Law the second is allowed by the late Laws when Corn is at a certain low price quaere the Law tempore Car. 2. the pulling down of Bridges wholly or placing them in other places may be done by a Law and what may be or not be by a Law is no malum in se more than any other prohibitum by a Law is Judgment was given by the Advice of the Judges in the Kings Bench Quod Quaerens nil Capiat In a formedon in the Reverter Mich. 25 Car. II. C. B. Rot. 253. John Bole Esquire and Elizabeth his wife and John Ely Gent. and Sarah his wife Demandants against Anne Horton Widow Tenant of _____ The Writ ONe Messuage Thirty Acres of Land Fifteen Acres of Meadow Twenty Acres of Pasture and of the third part of One Messuage One hundred and forty Acres of Land Four and forty Acres of Meadow Eighty three Acres of Pasture with the Appurtenances in Tickhill and Wellingly which William Vescy Gent. Grand father of the said Elizabeth and Sarah whose Coheirs they are gave to John Vescy during the life of the said John and after the decease of the said John to the heirs males of the body of the said John begotten and for default of such issue to Robert Vescy and the heirs males of his body begotten and for default of such issue to William Vescy son of the said William the Grandfather and to the heirs males of his body begotten and for default of such issue to Matthew Vescy and the heirs males of his body begotten And which after the death of the said John Robert William the Son and Matthew to the said Elizabeth and Sarah Cosins and Coheirs of the said William the Grandfather that is to say Daughters and Coheirs of the said John Son and Heir of the said William the Grandfather ought to revert by form of the said gift for that the said John Robert William the Son and Matthew are dead without heirs males of their bodies lawfully begotten Then counts that The Count. William the Grandfather was seis'd of the Premisses in demand in his Demesne as of Fee and held the same in Soccage of the late King Charles as of his honour of Tickhill in the said County in free Soccage by fealty only and so seis'd the Eight and twentieth day of November 1628. at Tickhill aforesaid made his last Will in writing and thereby devised the said Lands to the said John Vescy for life and after to the heirs males of his body begotten And for default of such issue to Robert Vescy and the heirs males of his body and for default of such issue to William Vescy the Son and the heirs males of his body and for default of such issue to Matthew Vescy and the heirs males of his body and after the Six and twentieth of December 1628. at Tickhill aforesaid died so seis'd And the said John after his death entred and was seis'd by force of the said gift and died so seis'd without heir male of his body After the death of John Robert entred by vertue of his said Remainder and was seis'd accordingly and so seis'd died without heir male of his body after whose death William entred by vertue of his said Remainder and was seis'd accordingly and he being so seis'd Matthew died without heir male of his body and after the said William died seis'd of the premisses without heir male of his body After the death of which William the Son for that he died without heir male of his body begotten the right of the Premisses reverts to the said Elizabeth and Sarah who together with their said Husbands demand as Cosens and Coheirs of the said William the Grandfather that is to say Daughters and Coheirs of the said John Son and Heir of the said William the Grandfather and which after the death of the said John Robert William and Matthew for that they died without any heir male of their bodies ought to revert to them The Tenant Anne for Plea saith That the said William The Barr. whose Cosens and Coheirs the said Elizabeth and Sarah are by his Deed dated the Seventh of November 1655. in consideration of a marriage to be solemnized between him and Anne the now Tenant then by the name of Anne Hewett and of 1200 l. marriage Portion and for a Ioynture for the said Anne and in satisfaction of all Dower she might claim out of his Lands And for setling the said Lands upon the issue and heirs of
the said William to be begotten of her the said Anne Infeoffed James Lane and John Lane Gentlemen of the said Premisses Habendum to them their heirs and assigns for ever To the use of the said William Vescy the Feoffer and his assigns for term of his life without impeachment of Waste and after to the use of the said Anne the Tenant if the Marriage succeeded between them for term of her life for her Joynture and after her decease to the use of the heirs males of his body on her body begotten forever and for want of such issue to the use of the heirs females of him the said William Vescy upon her body begotten and for want of such issue to the use of the right heirs of him the said William Vescy And bound him and his heirs to warrant the premisses as aforesaid to the said Feoffees and their Heirs to the uses aforesaid By vertue whereof and of the Statute of Uses the said William was seis'd for term of his life with the Remainder over as aforesaid And after the said marriage was had and solemnized between him and the Tenant Arine That William died so seis'd without any issue of his body and Anne surviv'd him and entred and by vertue of the said Feoffment and the Statute of Uses is seis'd in her Demesne as of Freehold for term of her life And that the said warranty of the said William descended from him to the said Elizabeth and Sarah as Cosins and Coheirs of him the said William the Son that is to say Daughters and Coheirs of John Vescy Brother and Heir of the said William the Son and demands Iudgment if against the said Warranty the Demandants shall be received to demand and avers her self and Anne Hewett named in the Feoffment to be the same person The Replication The Demandants reply and confess the Feoffment to uses of William as is pleaded in Barr to Lane and Lane and their heirs with warranty But further say That the said William Vescy the Son after that is the Four and twentieth of December 14 Car. 2. at Tickhill aforesaid died without any issue of his body which they are ready to aver and demand Iudgment if they shall be barred of their Action against the said Anne by the said Feoffment and warranty The Rejoynder Anne the Tenant rejoyns that the Replication is insufficient and demurs thereupon The matter of the Replication is all set forth in the Defendants Plea in Barr but only the time of William Vescy's death which was not material upon which the Demandants ought to have demur'd and not to have replyed impertinently The Case upon the Pleading William Vescy seis'd of the Land in question in his Demesne as of Fee held of King Charles the First in free Soccage as of his Honour of Tickhill by his last Will and Testament devis'd the same to John Vescy his eldest Son and the heirs males of his body and for default of such to Robert Vescy and the heirs males of his body and for default of such to William Vescy his Son and the heirs males of his body and for default of such to Matthew Vescy and the heirs males of his body and died Then John entred and died seis'd without issue male leaving two daughters Elizabeth and Sarah now Demandants together with their Husbands After his death Robert entred and died seis'd without issue male Then William entred and was seis'd and Matthew in the life of William died without issue male William by his Deed Indented in Consideration of an intended marriage with Anne the now Tenant and for other Considerations infeoffed James Lane and John Lane Habendum to them and their Heirs to the use of William the Feoffor for term of his life and after to the use of Anne Hewet now the Tenant for her life then to the use of the heirs males of his body upon her begotten and for default of such to the use of the heirs females of his body on her begotten and for default of such to the use of his right Heirs And bound him and his Heirs to warrant to the said Feoffees and their Heirs William by vertue of the said Feoffment and of the Statute of Uses was possessed and after he married the now Tenant and died seis'd as of his Freehold without any issue of his body After his death Anne his wife now Tenant by vertue of the said Feoffment and Statute of Uses entred and was posssessed Against whom Elizabeth and Sarah Daughters and Coheirs of John Vescy and Cosins and Coheirs of William the Devisor bring their Formedon in the Reverter Anne the Tenant in possession would rebutt and barr them by the said warranty of William Vescy the Son whose Cosins and Coheirs they are videlicet the Daughters and Coheirs of John eldest Brother of the said William And whether the said Anne Tenant by the said Feoffment and Statute of Uses can rebutt them by the said warranty is the general Question For Resolution of which I must make these previous Questions The first is If before the Statute of 27 H. 8. to Vses Tenant in tayl had made a Feoffment in Fee to uses with warranty to the Feoffees and their Heirs such Feoffees in a Formedon in the Reverter brought against them by the Heirs of the Donor could have rebutted and barr'd them by the warranty of the Tenant in tayl For if the Feoffees to use in such case could not have barr'd the Heirs of the Donor before the Statute by the warranty it is evident the Cestuy que use since the Statute cannot barr them for he can have no more power since the Statute than the Feoffees to use had before the Statute by the warranty I put the Case before the Statute for clearness sake only for though since the Statute there are Feoffees to use as before yet no question can be made upon their rebutter by a warranty because the Estate is out of them by the Statute as soon as it is in them And as to this the Case in effect is no more than Whether the warranty of Tenant in tayl which must be admitted to be a Collateral warranty descending upon the Donor or his Heirs will barr him or them of the Reversion The second Question I make admitting the Heirs of the Donor to be barr'd by the warranty of Tenant in tayl descending upon them is Whether after the Statute of Uses the Cestuy que use can have any benefit of the warranty granted to the Feoffees to use either by way of Voucher or Rebutter Because the Cestuy que use is not in possession in the per by the Feoffees but by the Statute of Uses The third Question is admitting generally that the Cestuy que use shall have benefit of the warranty made to the Feoffees to use Whether yet in this Case Anne the Tenant being a Cestuy que use shall have benefit of the warranty made to the Feoffees Because neither William
one Richard Manfell his Clerk who upon his Presentation obtain'd the said Vicaridge and was in actual possession thereof and so being in possession a Statute was made the 25th of April 12. of the King for confirmation and establishing of Ministers in their Ecclesiastick Possessions ordained by any Ecclesiastick Persons before the 25th of December then last past And that the said Richard Manfell by vertue of the said Statute was real and lawful Incumbent and Vicar of the said Vicaridge That the said Lord Wootton and Mary his Wife being seised of the said third part of the said Mannor and Rectory aforesaid for their lives with remainder as aforesaid the said Lord Wootton so seised dyed at Burton Basset aforesaid That the said Mary survived him and was thereof sole seised for term of her life by Survivorship And being thereof so seised with Remainder as aforesaid The said Margaret married the said John Tufton and after the 8th day of August 22. Car. 1. By a writing under her hand and seal produc'd in Court by the said John Tufton dated the same day and year appointed that the said Fine leavyed as aforesaid in the 4th year of the King should be and the Conusees therein named should stand seised of the said third part to the use of the said Margaret and of the said John Tufton for term of his life as by the said writing more fully appears By vertue of the said Fine and Statute of uses the remainder of the said third part after the death of the said Mary belong'd to the said John Tufton and Margaret for term of the said Johns life with remainder as aforesaid That the said Mary being seised of the said third Part with remainder over as aforesaid the said Margaret at Burton Basset aforesaid dyed without issue of her body and the said John Tufton surviv'd her That the said Mary afterwards at Burton Basset aforesaid dyed seised of such her Estate after whose death the said third part remain'd to the said John Tufton who was thereof seised for term of his life with remainder over to the Heirs of the Lord Wootton That the said Tufton being so seised in a Statute made at Westminster begun the 8th day of May in the 13th year of his reign and there continued until the 19th of May in the 14th year of his reign It was among other things enacted That Parsons Vicars and other Churchmen being Incumbents of any Ecclesiastical Living should subscribe the Declaration or Recognition set forth in the said Act in manner as by the said Act is recited which is set forth at large in the Pleading upon pain of forfeiting the said Parsonage Vicaridge or other Ecclesiastical Living and to be ipso facto deprived of the same And the said John Tufton in fact saith that the said Richard Mansell was in possession of the said Vicaridge of Burton Basset and did not as by the Act was required subscribe the said Declaration whereby he stood ipso facto deprived and the said Vicaridge became void That such vacancy of the said Vicaridge is the third vacancy thereof after the aforesaid Presentation of the said Lord Wootton and therefore it belongs to the said John Tufton to present a fit Person to the same and that the said Bishop Richard Temple and Chamberlayne do hinder him so to do to his damage of fifty Pounds The said Bishop and Richard Temple plead in Bar. And first the said Bishop That he claims nothing but as Ordinary Then the said Richard Temple saith the said Tufton ought not to have his Action against him and taking by Protestation that the said Tufton was not seis'd in his Demesn as of Freehold for Term of his life of the third part of the said Mannor of Burton Basset and of the third part of the said Rectory of Burton Basset aforesaid for Plea saith That he the said Richard Temple was and yet is seised of the said two parts of the said Mannor and of the Advowson of the Vicaridge of Burton Basset aforesaid as appertaining to the said two parts of the said Mannor in his Demesne as of Fee and right in the time of the King that now is That being so seised the said Vicaridge became void by the said Deprivation of the said Richard Manfell by reason whereof he the said Richard Temple being seised of the said Advowson as aforesaid presented to the said Vicaridge the said Chamberlain as was lawful for him then traverseth absque hoc That one third Part of the Advowson of the said Vicaridge namely to present a fit person to the same Vicaridge every third turn of the said Vicaridge doth appertain to the said one third part of the said Mannor and to the said one third part of the Rectory Impropriate of Burton Basset as the said John Tufton hath alledg'd which he is ready to aver and demands Judgment And the said Chamberlaine the Clerk taking by Protestation that he doth not know any the matters in the Declaration to be true and taking also by Protestation that before the said Vicaridge became void by the Deprivation of the said Richard Manfell and at the time it was so void the said Richard Temple was and yet is seised of the said two parts of the said Mannor and of the Advowson of the Vicaridge of the said Church of Burton Basset as appertaining to the said two parts of the said Mannor in his Demesne as of Fee and right And for Plea saith That he the said Chamberlain is Vicar of the said Vicaridge by the Presentation of the said Richard Temple and was thereto admitted instituted and inducted Then traverseth absque hoc That the said Thomas Lord Wootton after the death of the said John Reignalds so as aforesaid presented to the said Vicaridge being void in his turn the said John Cragg as the said Tufton hath alledg'd and demands Judgment As to the Bishops Plea his excuse is admitted and the Plaintiff hath Iudgment with a cessat executio against him and a Writ to admit idoneam personam to the Vicaridge non obstante reclamatione To the Defendant Temples Plea the Plaintiff demurs and the Defendant Temple joyns in Demurrer To the Plea of Chamberlain the Incumbent the Plaintiff replys That the said Thomas Lord Wootton after the death of the said John Reignalds Incumbent as aforesaid presented to the said Vicaridge then vacant in his turn as aforesaid the said John Cragg as the Plaintiff hath formerly alleag'd Et de hoc petit quod inquiratur per patriam To which the Defendant Chamberlain doth not rejoyn any thing nor joyns in issue and therefore the Plaintiff hath Judgment to recover his Presentation as against him and a Writ to the Bishop non obstante reclamatione and to remove the Defendant Chamberlain from the Vicaridge notwithstanding his Admission Institution and Induction but with a cessat executio until the Plea be determined between the Plaintiff and the Defendant Temple THIS CASE in fact cannot be
28 Eliz. by her Letters Patents under the Great Seal bearing date the said year and day at Westminster to the said Church then being void presented the said James White who was admitted instituted and inducted tempore pacis c. That the said James White being so Rector of the said Church and the said Richard Jervis seis'd of the said Mannor to which the said Advowson pertained c. the said Richard after at Norfield aforesaid died so seis'd After whose death the same descended to one Thomas Jervis Esquire as Son and Heir of Richard and from him descended to one Sir Thomas Jervis Knight who enter'd and was seis'd and so seis'd the said Sir Thomas Jervis 30. March 14 Car. 1. March the 30th 14 Car. 1. by his Deed in writing seal'd at Norfield aforesaid granted to one Phineas White the Advowson of the said Church for the first and next avoidance only whereby the said Phineas was possessed for the next avoidance of the said Advowson and so possessed the said Church became void by the death of the said James White which was the first and next avoidance after the said Grant to Phineas Phineas by virtue of his said Grant presented one Timothy White his Clerk who was thereupon admitted instituted and inducted tempore pacis tempore Car. 1. The said Timothy being Rector and the said Sir Thomas Jervis seis'd as aforesaid The said Sir Thomas died seis'd at Norfield aforesaid and the said Mannor with the Appurtenances descended to Thomas the Defendant as his Son and Heir who enter'd and was and yet is seis'd and being so seis'd the said Church became void by the death of the said Timothy White and the said Thomas Jervis the Defendant presented the other Defendant John Hunckley who was admitted instituted and inducted long before the Writ purchas'd Then Traverseth Absque hoc That the late Queen was seis'd of the said Advowson with the Chappel of Coston aforesaid in gross and as of Fee Jure Coronae suae Et hoc paratus est verificare and demands Judgment si Actio John Hunckley the Incumbent taking by protestation That the late Queen was not seis'd nor presented as by the Declaration is suppos'd for Plea saith That Richard Jervis was seis'd of the Mannor of Norfield with the Appurtenances in Com. praedicto and the Advowson of the said Church appertain'd thereto and pleads the same Plea verbatim as to the Queens Presentation of White and all other things as Jervis the Patron pleaded and the presentation of himself and that he was by the presentation of the other Defendant Jervis admitted instituted and inducted into the said Church Septemb. 15. 1660. and Traverseth Absque hoc that the King was seis'd of the said Advowson and Chappel in Gross as of Fee Et hoc paratus est verificare and demands Judgment The Attorney General replies and as to the Bishop claiming nothing but as Ordinary Demands Judgment and a Writ to the said Bishop and hath it with a Cesset Executio until the Plea determined between the King and the other Defendants And as to the Plea of the said Thomas Jervis the Patron the Attorney maintains the Seisin of the late Queen and of King James King Charles the First and of the King that now is of the said Advowson of the said Church and Chappel as by the Count before is declared And that the said Phineas White of his own wrong by usurpation upon the late King Charles the First to the said Church then void by the death of the said James White presented the said Timothy White and Traverseth Absque hoc That the Advowson of the said Church was or is pertaining to the Mannor of Norfield and demand Judgment and a Writ to the Bishop And as to the Plea of the Incumbent the Attorney replies as before to the Patrons Plea That the late Queen King James King Charles the First and the King that now is were seis'd of the said Advowson in gross as of Fee and that the said Phineas White presented the said Timothy by usurpation upon King Charles the First and Traverseth the appendancy of the Advowson Ecclesiae praedicta to the Mannor of Norfield The Patron Jervis rejoyns and demurs upon the Attorney's Replication as insufficient and assigns for Cause that the Attorney hath Travers'd matter not traversable and that the Traverse ought to have been omitted out of the Replication as also that the said Plea is repugnant in it self and wants form And John Hunckley the Incumbent rejoyns That the said Advowson is pertaining to the said Mannor as he alledged in his Plea before Et de hoc ponit se super Patriam and the Attorney similiter Imperfections in the Pleading 1. Vpon this Quare Impedit brought there is a good Title to present surmis'd for the King but no more and there is much difference between a Title appearing for the King and suppos'd only 2. The Defendant by his Plea in Barr hath not well Travers'd the King's Title for it is travers'd but in part for only the Seisin of the Advowson in the Queen is travers'd whereas properly the Seisin and Presentation of the Queen by reason of her Seisin ought to have been traversed by Absque hoc That the Queen was seis'd of the Advowson in gross and presented 3. The Seisin of the Advowson which makes not a Title alone nor is not either traversable or inquirable by the tender of a demy mark in the King's Case Fitz. N. Br. f. 31. Letter D. Littl. Coke 294. b. in droit d'Advowson is not traversable neither alone in a Quare Impedit But no Demurrer being thereupon nor no Issue taken upon that Traverse no more shall be said of it 4. The King may alledge Seisin without alledging any time as Sir Edward Coke saith in a droit d'Advowson 26 H. 8. f. 4. a. Hob. Digby Fitz. herb f. 102. and Moore and Newmans Case f. 80. and 103. Rice and Harrisons Case Yelverton f. 211. 5. The Defendants Traverse was not necessary because he had confess'd and avoided the Queens Presentation by saying it was by Lapse if the Defendant had rested upon avoiding the Queens Presentation 6. The Attorney General ought to have maintain'd his Count and travers'd the Queens Presentation by Lapse 7. He doth not do so but deserts making the Kings Title appear and falls upon the Plaintiffs Title that the Advowson was not appendant 8. He offers a double Issue that the Presentation of Phineas White was by Vsurpation and the Advowson not appendant to the Mannor Certain Premisses If a man Counts or Declares in a Quare Impedit That he or his Ancestors or such from whom he claims were seis'd of the Advowson of the Church but declares of no Presentation made by him or them such Count or Declaration is not good and the Defendant may Demurr upon it so is the express Book following 1. A man shall not have a Quare Impedit Fitzh Nat. Br.
England or into parts not of the Dominion of England nor follows it because Goods were intended to be sold that is as Merchandise in a place where good market was for them that they were intended to be sold at any other place where no profit could be made or not so much or where such Goods were perhaps prohibited Commodities therefore the words of the Act brought as Merchandise must mean that the Goods are for Merchandise at the place they are brought unto And Goods brought or imported any where as Merchandise or by way of Merchandise that is to be sold must necessarily have an Owner to set and receive the price for which they are sold unless a man will say That Goods can sell themselves and set and receive their own prises But wreck Goods imported or brought any where have no Owner to sell or prize them at the time of their importation and therefore are not brought by way of or as Merchandise to England or any where else Secondly Though in a loose sense inanimate things are said to bring things as in certain Seasons Rain to bring Grass in other Seasons some Winds to bring Snow and Frost some Storms to bring certain Fowl and Fish upon the Coasts Yet when the bringing in or importing or bringing out and exporting hath reference to Acts of Deliberation and Purpose as of Goods for sale which must be done by a rational Agent or when the thing brought requires a rational bringer or importer as be it a Message an Answer an Accompt or the like No man will say That things to be imported or brought by such deliberative Agents who must have purpose in what they do can be intended to be imported or brought by casual and insensible Agents but by Persons and Mediums and Instruments proper for the actions of reasonable Agents Therefore we say not That Goods drown'd or lost in passing a Ferry a great River an arm of the Sea are exported though carried to Sea but Goods exported are such as are convey'd to Sea in Ships or other Naval Carriage of mans Artifice and by like reason Goods imported must not be Goods imported by the Wind Water or such inanimate means but in Ships Vessels and other Conveyances used by reasonable Agents as Merchants Mariners Sailors c. whence I conclude That Goods or Merchandise imported within the meaning of the Act can only be such as are imported with deliberation and by reasonable Agents not casually and without reason and therefore wreck'd Goods are no Goods imported within the intention of the Act and consequently not to answer the Kings Duties for Goods as Goods cannot offend forfeit unlade pay Duties or the like but men whose Goods they are And wreck'd Goods have not Owners to do these Offices when the Act requires they should be done Therefore the Act intended not to charge the Duty upon such Goods Judgment for the Plaintiff The Chief Justice delivered the Opinion of the Court. Hill 23 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff In a Replevin against Thomas Swindles William Whitehouse Roger Walton Defendants THE Plaintiff declares That the Defendants the Thirtieth of December 22 Car. 2. at Kings Norton in a place there called Hurley field took his Beasts four Cows and four Heifers and detain'd them to his damage of Forty pounds The Defendants defend the Force And as Bailiffs of Mary Ashenhurst Widow justifie the Caption and that the place contains and did contain when the Caption is suppos'd Twenty Acres of Land in Kings Norton aforesaid That long before the Caption one Thomas Greaves Esquire was seis'd of One hundred Acres of Land and of One hundred Acres of Pasture in Kings Norton aforesaid in the said County of Worcester whereof the Locus in quo is and at the time of the Caption and time out of mind was parcel in his demesne as of Fee containing Twenty Acres That he long before the Caption that is 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid by his Indenture in writing under his Seal which the Defendants produce dated the said day and year in consideration of former Service done by Edmond Ashenhurst to him the said Thomas did grant by his said Writing to the said Edmond and Mary his Wife one yearly Rent of Twenty pounds issuing out of the said Twenty Acres with the Appurtenances by the name of all his Lands and Hereditaments scituate in Kings Norton aforesaid Habendum the said Rent to the said Edmond and Mary and their Assigns after the decease of one Anne Greaves and Thomas Greaves Vncle to the Grantor or either of them which first should happen during the lives of Edmond and Mary and the longer liver of them at the Feasts of the Annunciation of the blessed Virgin Mary and St. Michael the Arch angel by equal portions The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves and Thomas the Vncle or either of them That if the Rent were behind in part or in all it should be lawful for the Grantees and the Survivor of them to enter into all and singular the Lands in King's Norton of the Grantor and to distrain and detain until payment By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne as of Free hold during their Lives as aforesaid The Defendants say further in Fact That after that is to say the last day of February in the Two and twentieth year of the now King the said Anne Greaves and Thomas the Vncle and Edmond the Husband died at King's Norton That for Twenty pounds of the said Rent for one whole year ending at the Feast of Saint Michael the Arch-Angel in the Two and twentieth year of the King unpaid to the said Mary the Defendants justifie the Caption as in Lands subject to the said Mary's Distress as her Bailiffs And averr her to be living at King's Norton aforesaid The Plaintiff demands Oyer of the Writing Indented by which it appears That the said Annuity was granted to Edmond and Mary and their Assigns in manner set forth by the Defendants in their Conuzance But with this variance in the Deed And if the aforesaid yearly Rents of Ten pounds and of Twenty pounds shall be unpaid at any the daies aforesaid in part or in all That it shall be lawful for the said Edmond and Mary at any time during the joynt natural Lives of the said Anne Greaves and Thomas Greaves the Uncle if the said Edmond and Mary or either of them should so long live and as often as the said Rents of Twenty pounds or any parcel should be behind to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid and to Distrain Vpon Oyer of which Indenture the Plaintiff demurrs upon the Conuzance Two Exceptions have been taken to this Conuzance made by the Defendants The first for that