CASES IN PARLIAMENT Resolved and Adjudged, UPON Petitions, and Writs of Error.

—Quicquid sum Ego, quamvis
Infra Lucili censum ingenium (que) tamen me
Cum Magnis vixisse, invita fatebitur us (que)
Invida —
Horat.

LONDON: Printed for A. and J. Churchill, at the Black Swan in Pater-noster-Row, MDCXCVIII.

TO THE READER.

NO Collection of Cases adjudged in Par­liament having been yet published, a Preface seems necessary to bespeak the Reception of that which is now presented to the World.

To commend or excuse the Collector, will not perhaps be a method to introduce it most to advantage: what may be spoken in favour of his diligence or capacity, will be censured vain, and if any excuse be offered for his ina­bility to have done it better, some will be rea­dy to take him at his word, and think the Per­formance comes from a careless or unskilful Hand.

Whatever the Author is, there needs no A­pology to be made for the nature or design of the Work it self; for the Subject Matter will be useful and entertaining to all Ranks of English Men, to whom Books are so; that is, to all such as understand and love Literature.

Here is our Municipal Law, and the rea­son of it, Equity and the Law of Nations in­terspersed; here is the manner of arguing, and the language of the Bar briefly toucht; here are the Forms of Proceedings sometimes mentioned, but then again those Forms are superseded by the Original and Eternal Rules of Justice.

By the Debates and Arguments here repor­ted, you may be acquainted in some measure with the Rights of the Peers, and their inca­pacity to alien such their Rights; with the nature of Slander, and some Rules concerning it; the Course of Equity in respect of Pe­nalties and Costs.

The Law of Average in the Case of Partial Losses at Sea; the Circumstances upon which Relief may be had in Equity against hard or unreasonable Agreements; the Construction of Wills to charitable Uses, where the Estate intended is greater in value, then the particu­lar Bequests amounts unto; the Power of a Council of State to commit; with variety of Matter concerning Pleading; and the Planta­tions belonging to England; and the Privi­ledges and Birthrights of the English Subject by the Common Law, and how far that Law extends.

The nature of Colledges, Hospitals, and o­ther Elemosynary Foundations, and the Au­thority and Power of Visitors, and the Me­thods of their Proceedings; the Court of [Page]Chivalry or Honour, the extent and bounda­ries of its Jurisdiction, before whom held, and when and in what Cases a Prohibition lyes to it; the power of Lords of Copyhold Man­nors to refuse Petitions for the Reversal of Recoveries in their Courts, and the Judgment of Equity upon such occasions; the right of Dower, and the efficacy of a Term attending the Inheritance to prevent its enjoyment, and the opinion of Equity thereupon.

The Preference of an Outlawry upon mesne Process to a Judgment not extended, and the practise and reason of the practise of the Court of Exchequer in that case; the Consi­deration which a Court of Equity ought to have of Bonds, Bills, or Promises made or gi­ven upon Condition or Consideration of pro­moting and procuring Matches.

The dependency which Ireland hath upon England, and her subordination to it, and the Authority of the House of Peers in This, o­ver the Proceedings in the Chancery of That Kingdom; the opinion of Equity upon Con­ditional Limitations, and what will be a Per­formance of such Conditions, and to whom the Profits shall go during the intermediate time, &c.

The qualification requisite in a Presentee to a Benefice, and the power of the Ordinary to refuse for defect of Knowledge, and how that defect is to be tried; the Constru­ction of Law upon a Deed leading the Uses [Page]of a Fine of the Wives Land to the Heirs of the Husband's Body, the Husband dying af­terwards before the Wife; the right of the half Blood, in the distribution of an Intestates Estate, and unto what Share; the right of nominating to the Office of chief Clerk for inrolling of Pleas in B.R. and to whom it be­longs; the nature of a Bill of Exceptions, and the Proceedings thereupon, and in what Cases the same may be refused, and if any Authority in the Lords over the Judges in case of such refusal.

The Punishment of Treason by the English Laws, and the Form of Judgments in that case; the nature of contingent Limitations after a Fee, and if they may be allowed upon Contingencies to happen at any time after the decease of Persons then in being; the manner of declaring the Uses of a Fine, and by what Deed or Writing; the nature of Wills, and of the revocations of them, and if a Will, whereof the Contents are unknown, may revoke a former; the efficacy of the acts of one that is Non compos mentis; and if, and how far void; what Deeds altering the Estate of a Testator, shall revoke a solemn Will.

The nature of the Office of a Clerk of the Peace, and by whom grantable, and for what Interest, and how removeable; the Pre­rogative of Presenting to Benefices made void by Promotion, and if such Prerogative be ser­ved or fulfilled by a Commendam; and [Page]whether it can operate upon a new created Parish or Rectory; the formal reason and es­sence of Treason, and wherein it consists, and what is necessary to be alledged in Indictments for that Offence; the right of Tythes for Her­bage or Agistment of Cattle grazed and fed for Sale, tho' formerly used to the Plough.

The Exposition of a Will of a Native of France, and by what measures a Judgment ought to be made of the meaning of Phrases used by such Persons, in that Language, upon such an occasion; the Construction of the word Share in a Will, concerning the New-River Water; the force or validity of a Grant or Assignment of Land (in which the Grantor had a very long term) to hold from and after the Grantor's decease; the Title of Knight, if, and how, part of the Name, and what Allegations in a Count in a Quare Impedit are not needful to be an­swered to, and what may be traversed, and what Grants of the Crown shall be good notwith­standing some, and what Misrecitals.

These and many other Particulars, worthy of most Mens notice, are here debated; and it may reasonably be supposed, that none will be Enemies to the Design and Publication, but those who mislike the small Remainders, we have left us, of the Aristocratical part of our Government: the Gentlemen who do so, must be unacquainted with the Grecian and Roman Story, as well as with our own, or else have read it but superficially; for even the [Page]most perfect of the Grecian Common-wealths were somewhat Aristocratical. That which may be called such, is Sparta, which, tho' it had some Laws we cannot account for, yet during several Centuries it maintained its own Liberty, and assisted its Neighbours to pre­serve theirs.

And notwithstanding some Men may think the contrary, Democracy was not the only Fa­vourite Model of the Ancient Legislators. The wise Solon, who founded that Popular Go­vernment of Athens, was not so fond of his own Frame, as to recommend it to other places, tho' he believed that it suited best with the Infirmities of the People: And even in Rome, before she acquired any great Repu­tation, there was a Senate, under Kings it had one, nor doth it appear that a Senate was adjudged useless, when it became and was called a Common-wealth. And as soon as the Senate lost its Authority, a Tyranny was set up: This may be called their Aristo­cratical Part; and whosoever reads the Lives of those Roman Worthies, Cato Ʋticensis, &c. that nobly attempted to defend the Liberties of their Country, will find, That it was for the upholding the Authority of the Senate, that they contested, fought, and died.

Machiavel indeed, in his Discourses upon the Decades of Titus Livius, has strained al­most every thing in favour of Democracy, and with extream Art and Labour, hath il­lustrated [Page]a Popular State, and made Rome the Example of it; and yet even in those Dis­courses, he sometimes shews the Necessity of an Aristocratical Mixture, to make a just and regular, and happy and lasting Govern­ment.

Nay, Algernoon Sydney himself, that famous As­sertor of Liberty, doth almost every where prefer the Aristocracy; and he was confirmed in that Sentiment, by the Views he had ta­ken of former and present Governments, and by the Knowledge he had of what formerly was our own Constitution, till Henry the Se­venths Reign: For that Prince (as the Lord Bacon rightly observes) was rather cunning in relation to his own Times, then a Person that had a full prospect of what would afterwards be the Consequence of his Measures, or that had a due regard to Posterity: No Man can wish, that the House of Lords should be made Cyphers; if they could once again be made the Natural Balance between the King and People.

There drop, even from Mr. Sidney's Pen, Expressions enough to prove, that a just Com­position of the Three Powers, Monarchical, Aristocratical, and Democratical, would have been reckoned even by him an equal Go­vernment.

Such a Mixture even our Government was; and tho' some, perhaps out of meer Ignorance, have disputed the Democratical, [Page]and others the Monarchical part of our Con­stitution; yet no Body ever to this day could pretend, that our Barons, those Majores Reg­ni, had not originally a Share both in the Legislature and Administration within this Kingdom: The Fact is not necessary to be proved, because 'tis not denied; and the rea­sonableness of it is apparent.

There's no occasion to Complement them for what their Ancestors did in procuring of Magna Charta (which the judicious and in­defatigable Antiquary Sir Henry Spelman, saith, was only an Ascertainment or Recompile­ment of our Old Laws).

It would be of Publick Service, to have a just State of the true Powers of the House of Lords in their Judicial and Legislative Capacities, ac­cording to the true English Constitution; that we might be familiarized to the almost anti­quated Notions of the Aristocratical part of our Government; and so may neither be over­run with the Schemes of Absolute Monarchy-Men, who would have all Judicial Power, e­ven the Dernier Resort lodged in the Crown, or in Delegates appointed by it, and not in the Parliament, nor be crumbled into the Disorders which must follow the Notions of those who aim at a pure Democracy.

But to write an Exact Discourse upon this Head, would require more Lines then can become a Preface: The Reader therefore must not here expect an Account of the [Page]Growth and Decays of their Power, and the true Reasons of Each; and the Regulations or Restrictions that will be needful, if they ever happen in any degree to be restored to the Preheminence and Authorities, which they formerly enjoyed among us.

It is enough for the present to say, That all the Measures taken and used in the Exercise of their Judicature, are observed without Doors, especially by the Persons concerned, their Relations and Friends: That the Errors in such Exercise (if any) are only to be corre­cted by themselves, and no ways proper or fit to be suggested by any private Person, much less to be published in Print.

However, it may be hoped, that these Re­ports may probably convince the young No­bles of this Realm, and all who are imployed in and about their Education, that some ge­neral Knowledge of the Laws of England, and some Acquaintance with History and other Learning, cannot be unworthy the Ambition of every Noble-man's Son, who has any hopes to sit as Judge in that August Assem­bly; where the nicest of Questions, in Cases of the greatest Consequence, and between the greatest of Subjects, and many times be­tween the King and his People, do frequent­ly come under Consideration.

And these Papers may likewise remember them, what just Liberty of Arguing and De­bating hath been allowed to Counsel, and [Page]with what Candour and Patience they have been heard, even in the most tender Points: As also shew them what Resolutions were ta­ken upon those Debates and Arguments, that the Law may be consistent with it self, and remain (as it is) a certain Rule of doing Right.

As to the present Performance, the Reader is desired to pardon all Mistakes in Grammar, and in the Figures of Folio's and Pages, and other common Errata of the Press, which by reason of multiplicity of other Business, could not easily be attended to and observed.

—Omari Res ipsa negat—

THere will shortly be Printed, The Historical Library of Diodorus the Si­cilian, the whole Fifteen Books, Translated from the Greek, with all the Fragments; And will be Sold by Awnsham and John Churchill in Pater­noster-row.

Dominus Rex, & Viscount Purbeck.

UPON a Petition, the Question was in the House of Lords, Whether the Dignity of a Viscount could be surrendred to the King by a Fine? And it was Argued at the Bar by three Counsel for the Petiti­oner, and by the Attorney General for the King. It was urged on behalf of the Petitioner, That a Dignity cannot be surrendred to the Crown; and that for these Reasons:

1. It is a Personal Dignity annexed to the Blood, and so inse­parable and immoveable, (See Ratcliff's Case 3 Rep. Rutland's Case 6 Rep. 53.) that it cannot be either transferred to any other Per­son, or surrendred to the Crown; it can neither move forward nor backward, but only downward to Posterity; and nothing but a Deficiency or a Corruption of the Blood can hinder the Descent, as if the Ancestor be Attainted of Treason or Felony, &c. For in that Case, the Heir conveying no Inheritable Blood, can­not make any Claim to that which is annexed to the Inheritable Blood; and besides, there is a tacite Condition of Forfeiture an­nexed to those Dignities, by the Breach of which Condition the Dignity is determined; but by the Act of the Party there can be no Determination of it, unless there be an Attainder which cor­rupts the Blood: And he took a difference between Ancient Ho­nours and Dignities which were Feodary and Officiary (as Earl Marshal of England) which have a Relation to an Office or Land, for such are Transferrable over; and such Dignities as are only Personal, Inherent in the Blood, and only favour quasi of the Reality, of which no Fine can be levied, as 'tis of an Annuity to a Man and his Heirs, no Fine can be levied.

2. A Dignity was neither subject to a Condition at the Com­mon Law, nor intailable by the Statute de Donis, &c. nor barra­ble by the Statute of Fines: Indeed, in Nevil's Case, something which favours of the contrary Opinion is said; but the Question there was, Whether 'twas forfeitable by Treason? And therefore the present Question is very forreign to the Matter there debated. [Page 2]A Dignity differs from other Inheritances, being an Honour Per­sonal affixed to the Blood, cannot be forfeited by a Non-per­formance of a Condition, except that Tacite Condition in Law, and consequently cannot be intailed; and tho' the Title of a Viscount be of a Place, yet it is only Titular, for it is often taken from the Sirnames of Families.

3. The Title of Viscount, &c. is not so much a private Inte­rest as a publick Right, for Peers are born Counsellors of State, and one part of a Senatory Body, and therefore cannot be re­nounced without the Consent of all those who have interest in it; they cannot, without the Consent of the whole Body, whereof they are so considerable Members, cut themselves off from the Body; and so the Objection of quilibet potest Juri suo renuntiare is easily answered.

'Twas further argued on the same side, That

1. An Honour goes not according to the Rules of the Com­mon Law, nor is it governable by them, it is not therefore perti­nent to argue from those Rules which hold in Cases of other In­heritances, for a Dignity descends to the Half-blood, there is no Coparcinership of it, but the Eldest takes the whole; a Fee-sim­ple will go to a Noble-man without the word (Heirs) 1 Inst. 27. It differs from Estates in Land in the Intrinsick Matter, as well as the Manner of the Limitation, because it is given for two Rea­sons, for Counsel and Defence; and it is a Civil Interest, appoint­ed by the Civil Constitution of the Realm, which goes with the Blood, and is inherent in the Blood, insomuch that it is agreed on all hands, that it can't be transferred to a Stranger; and till Nevil's Case, 'twas doubted whether forfeitable for Treason; if a Lord die, his Son shall be introduc'd without the Ceremony usual at the first Cre­ation; a Peer's eldest Son, and all Minors, sit behind the Chair of State, to prepare them for the Sitting in the House as Members, and because they have some Title to the Honour they are called Nobiles Nati, for the first time they fetch breath they have No­bility in them: So that he that Surrenders by Fine, must not only extinguish his Estate in the Honour, but also the Nobility of his Blood.

2. Every Lord is not only a Lord for himself, but also hath a Right of Peerage, and is a Peer of the Realm, and therefore a Peer for every one of the House, and therefore hath the Privi­ledge to demand his Writ Ex debito Justitiae, and is to be tried by his Peers in Capital Crimes; and that appears farther from a Mat­ter which happened in this House, 16 Car. 2. There was an Order mentioning the Bishops to be Lords of Parliament, not Peers; at which the Lords wondering, ordered a Committee to examine the reason of it; which proves that Lord is not so high nor inclu­sive as Peers: So that if the Fine have any Operation, it takes [Page 3]away not only his Right, but also the Right of the House of Lords.

3. The trial of Baron or no Baron upon Issue in any Court of Judicature is by the Records of Parliament; but if a Fine may be levied in the Common Pleas, the Trial is drawn ad aliud Examen, and must then be by the Records of that Court. The Clerk of the Parliament always certifies if he be a Baron, because he hath the Record before him; but he cannot certifie he is no Baron, be­cause he hath not the Record thereof before him.

4. No Fine can be levied of a thing Personal, as an Annuity to a Man and his (Heirs), but a Dignity is a thing Personal; and so he took notice of the difference betwixt the Honours of Peerage, which are Personal, and the Honours that are Feodary and Officia­ry, which have reference to an Office or Land.

5. He did argue ab inconvenienti that this Opinion can be no Inconveniency to the Crown; but the contrary makes Nobility a meer Pageantry, by putting it into the Hands of a weak and an­gry Father, to dispossess an hopeful Son of that which is his Birth­right: The Titles of Esquire and Gentleman are drowned in the greater Dignity of that of a Peer, and when the greater are gone, the other must go with it: And then from being a Nobleman to day, he and the rest of his Family must be below all Nobility, and be called Yeomen or Goodman Villers to morrow, which may bring great Confusion to a Noble Family and all its Relatives; and surely this House will not put such a publick Disrespect on such a Family, by agreeing to so unjust an act of one Man. And that which was most relied upon, was a Resolution of this House in Stafford's Case, Anno 1640. which no Man without Indecency can question; it passed not sub silentio or obiter, but upon debate; neither could it be any way invalid upon account of the Times, for it was in the Infancy of that Parliament, and that wherein a Peer's Case, who sits now in this House, was judicially before them; and therefore there is no reason to shake that Judgment more than any other Judgment of that time. My Lord Cooke in his 4 Inst. Chapt. of Ireland, is of Opinion that Honours cannot be extinguished but by Act of Parliament. Then as to the Prece­dents that have been urg'd on the other side, there are none di­rectly to the Point; for as to Nevil's Case, there are very few Cases cited there aright, and are not to be look'd upon as Law. The Case of my Lord of Northumberland in 3 & 4 Phil. & Mar. was by way of Creation, and so was the Case of Dudley. And Dugdale in his Baronage of England, pag. 270. gives an account of it; and the rest of the Precedents are above Two hundred years old, which passed sub silentio, and are not to be vouched un­less they were disputed. The first is Bigod's, who in the time of Edw. 1. surrendred the Honour of Earl-Marshal of England to the King, who granted it to him in Tail: This Honour is Of­ficiary, and therefore nothing to the purpose; and the Surrender [Page 4]was made thro' fear, Walsingham 95. The next is the Earl of Pembroke's Case, who in 8 Edw. 4. was made Earl in Tail, and by this he had the Grant of the Town of Haverfordue; the King afterwards inclining to dignifie his Son with that Title, procured him to Surrender by Deed, and bestowed on him another Title, and gave a greater Estate, and an ancienter Honour. Here was an Estate Tail surrendred by Deed; it might work a kind of Dis­continuance, but no legal effectual Surrender. And for the Case of Ch. Brandon, who in the time of H. 8. was created Viscount Lisle, afterwards he surrendred that, and got a Dukedom; now no Man ever questioned the efficacy of this Surrender, for he him­self had no reason to question it, for 'twas to his advantage; and none other could question it, for he died without Issue, and his Honour with him: And so in the Case of my Lord Stafford, he sur­rendred, and got a new Honour. So that it appeared all these Cases were either Honours referring to Offices and Lands, or else such as were for the re-granting of greater Dignities, which they had no reason to question, and so they passed sub silentio: But here is not one Precedent that they did ever Surrender to the Prejudice of their Blood, or move themselves quite out of the House by Fine or Deed. And further, If Precedents be good for the Sur­render of an Honour by Fine, why not also for Transferring of it to another? for of this we have some Precedents, Daincourt's Case, 4 Inst. 126. One Branch of the Family sat in the House by virtue of a Grant from the other Branch from the Reign of Ed. 2. to Hen. 6. and the Case of the Earldom of Chester, first granted 17 H. 3. n. 25. and transferred 39 H. 3. And there was an At­tempt made in the Lord Fitzwater's Case, to make a Baron by transferring of the Dignity; but you will find all these Precedents disallowed: And 'twas said that no Man ever met with any Case where any Nobleman by Fine levied, or other Conveyance, be­came a Yeoman or Ignoble.

'T was argued by another much to the same effect, That Baro­nage and Peerage is to be determined by the Records of the Lords House, and if any other way be given, as there must be, if a Fine be allow'd to barr, then the old true way is gone: This was not a Fine Conditional at the Common Law, and therefore not with­in the Statute De donis Conditionalibus, and an Honour being a Personal Dignity, is not to be barred (Jones Rep. 123.) by Fine, being inherent in the Blood, &c. The Duke of Bedford was by Authority of Parliament degraded, and that was for Poverty, and by Act of Parliament, and not by Surrender: Therefore Judgment was prayed for the Petitioner.

The Attorney General argued pro Domino Rege upon these Rea­sons:

1. There is but a defective Proof of the Creation of this Ho­nour, no Letters Patents, no Records of the Inrollment produ­ced, nor any Entry in any Office of such a Patent, as is usual; all [Page 5]that is pretended is, That he sate in some Parliaments afterwards as Viscount Purbeck; but that will not be accepted for proof; for no Man can be created Viscount but by Letters Patents: a Writ of Summons will be an Evidence of a Creation, but will not a­mount to a Creation; there is a Ceremony equal almost to that of an Earl, there must be a Coronet; all which must be perform­ed, or he must have Letters Patents to dispense with it, which be­ing Matter of Record, must be produced. 18 Hen. 6. Beaumont was the first created Viscount, but there was never any since, nor then without Letters Patents; for he is to take place of some, and therefore he must have something to show for his Precedency; but a Baron is the lowest Dignity, and therefore may be created by Writ: Neither can it be presumed that they were lost, for ex­cept it be produced it makes no Title; except they be produced, it shall not be intended there was any; neither can it be help'd by any concurrent Evidence, for if there were (Page's Case 5 Rep. 53.) a true Creation, there would be some Evidence in some of the Offices; but there is not in any of them the least vestigia of proof to ground a presumption.

2. Dignities, as well as other Inheritances, must be limited ac­cording to the Rules of Law; the Dukedom of Cornwal (in 8 Rep. the 1. the Prince's Case) was limited according to the strictest Rules of Law. And whereas it hath been said that Dignities dif­fer from other Inheritances, that is where there is some particu­lar reason for it, as in the case of Transmission or Alienation, which depends not upon the Manner of Creation, as shall be shewn afterwards: And for the Case of 1 Inst. 27. which was that an Inheritance of a Dignity may be created by other words than other Inheritances are, as an Estate Tail without the words of this body, there's not any such thing in the Book: 'Tis said in­deed, that if the King for reward of Services done, do grant Ar­mories to a Man and his Heirs Males, 'tis an entail of the Coat without saying of his body; but I think that will not be taken for the Case of a Dignity; the Statute De donis Conditionalibus ex­tends to Honours; the word terram would be thought an impro­per word to comprehend all things tailable, yet said to extend to all, and to Honours too, 1 Inst. 20. and if an Honour can't be entailed, then no Remainder can be limited; and yet there be many Lords that sit in this House by Remainder by good Title. The Statute of 26 Hen. 8.17. saith, That if a Man be Attainted of Treason, he shall forfeit his Lands, Tenements, and Heredita­ments: Now 'tis adjudged that the word Hereditaments compre­hends Honours; which show that they are subject to the same Rules of Law that govern other kind of Inheritances, and are compre­hended with other Particulars without general words. This be­ing premised, it's a known Maxim in all Laws, Nihil rationi ma­gis consentaneum quam rem eodem modo dissolvi quo constituitur, which Rule is so general, that the highest Authority, i. e. the Par­liament is not exempt from it; for 'tis not possible to establish any thing so firm by Statute, which cannot by another Statute be [Page 6]annulled. Now in the Creation of a Peer there are three things; the Person that creates, the Person that is created, the Matter of Record whereby he is created. Now if the King, who is the Person that creates, and his Successors agree with the Person that is created Peer, and his Successors, the one to undo their parts, and the other to give away their parts, and there is a Matter of Re­cord of as high a nature concurring to effect this Dissiolution, &c. in some Cases 'tis in the power of an Ancestor, by his own act, to destroy a Patent; as if a Scire Facias in Chancery be brought a­gainst his Patent, and Matter is suggested whereby to avoid it, this shall (Bro. tit. Patent. 37, 97.) vacate whatsoever was crea­ted by the Patent, and yet' tis there in the power of the Ancestor, by good Pleading, to have supported the Patent, and by bad plead­ing to destroy it; and therefore when the Foundation, which is the Patent, fails, the Honour, and whatever it be that is erected upon it, shall fail also: Every Estate by the consent of all Per­sons interested and concerned in the thing, may be taken away, for the Law is so set against Perpetuities, that a Clause intimating it is void, and tho' an Honour is not (Jones Rep. 109, 123.) assign­able, yet it may be extinguished. It's true, if a Man hath but a part of an Estate, as only an Estate for Life, he can't alone pass a­way the whole Estate, but none who hath the Inheritance in Tail or in Fee, but he may destroy the whole, and tho' any one have but part, yet by the concurrence of all that are concerned, the whole may be destroyed: It is admitted if he commit Treason, and is attainted thereof, he loseth the Honour for himself and his Posterity; now 'twas in his power to do this act overt; and if by an act unlawful he hath power to defeat the descent of the Intail upon his Issue, there is the same reason that by a lawful act he should part with it; there are two Acts of Parliament in force which fortifie the Fine; it must be granted that those Honours are within the Statute de Donis, and then there can be no reason they should not be within the Statutes of Fines, 4 Hen. 7. & 34 H. 8. which say that Tenant in Tail may levie a Fine of all things that are intailable within the Statute de Donis, whatever therefore is within the one is within both: and it is not sufficient to alledge that it is inconvenient that it should be within the Sta­tute of Fines; for there is an Act of Parliament, and without an Act of Parliament to exempt it, it can't be exempted: It may be proved by great variety of Precedents to have been the practise in former times, anciently nothing more frequent than to release Ho­ours. See Selden's Titles of Honours 730. it was as frequent as to grant them: In latter times (Delaval's Case, 11 Rep. 1.) it hath been the Judgment of the Lords that Honours may be extinguished, which in 1668. was certified by all the King's Counsel Learned in the Law to be good Authority. But to go a little higher, Andrew Gifford Baron Pomfret in Fee, 4 Hen. 3. Rot. 100. surrendred to the King: so 23 Hen. 3. Simon Mountford Esq; Earl of Leicester, having a Mind to take an Honour from his eldest Son, and con­fer it upon his younger, and so it was surrendred and regranted [Page 7]accordingly. Selden seems to construe this to be by way of Trans­mission and not Surrender; yet others of later Authority (as Cambden's Britan. Title Earl of Leicester) say expresly that he did Surrender it; and Selden himself says it was by Concurrence of the King: King Hen. 3. (Rot. Cr. 24. men. E. 1.) created one Earl of Richmond, and he surrendred to the King (Cambden's Brit. Title Earl of Richmond.) Roger de Bigod surrendred not only the Office of Earl Marshal, but also the Earldom of Norfolk. William Duke of Juliers, whose Father came in with Edw. 3. was created Earl of Cambridge (40 Edw. 3. m. 21.) in Fee, his Son surrenders to the King, which Record we have here: So Edward the Third made his Son John of Gaunt (See Cambden's ubi supra) Earl of Richmond, who surrendred it to the King. And lastly, in the Years 1639, 1679. Roger Stafford, whom the King intended to make a Viscount, by the Advice of the Learned Men levied a Fine thereof, by which 'tis now enjoy'd. Lastly, he argued ab inconvenienti, for no Lord in the House will be in safety if it should be other ways, there be­ing many sitting in this House by virtue of Surrenders from other Lords in former days, and perhaps some of their Heirs are alive; and so if these Surrenders be adjudged invalid, it would shake your Lordships own Possessions, and make it dubitable, whether For­reigners and Persons unknown may not come and thrust them out; but if not so, it may cause Confusion amongst themselves, their former Honours having been surrendred to accept of others, and perhaps some, not thinking their Titles secure, will stick to the former, and so occasion Dispute and Confusion about Preceden­cy; and lastly, it will put a great Disgrace upon your Ancestors proceedings, who deemed this Course legal: and those must show very good Precedents that it hath been disavowed, if they will en­counter such constant Practises.

In the next place 'twas answered to their Arguments and Obje­ctions: and as for that first Argument, That an Honour is inherent in the Blood; he answered, That this Inherency in the Blood is not essential to Honours, for an Honour may be created for Life, and then none of the Posterity or Blood of the Peer is thereby enobled: It may be limited to the Heirs Males of the Body, so that an Honour may touch and enter far into the Blood, and yet not run with it; and farther, it may be limited to the Heirs by such a Wife, there the Issue by the second Venter shall never inherit the Dignity, and yet is as near to the Father, as those that are by the first, so that 'tis no true ground that they go upon, that Nobility is inherent in the Blood; and for what was alledged as to the Inconveniency of Surrendering Dignities, he answered, That there may be necessary Reasons for the extinguishment of an Honour, and it may be for the benefit and advantage of the Party and his Posterity; as if it do happen that the Family do fall into Poverty, and be not a­ble to support the Honour of Peerage with decency, and so this Honour would perhaps be a Disgrace to the rest of the Lords; and in a Child's Case, it may happen to a Noble Family to have those Afflictions, that to continue the Honour would expose the [Page 8]Family to Infamy; and therefore some times, to prevent the Son of Adultery from his succeeding to the Dignity, it may be con­venient to surrender it; and yet this cannot be without the con­currence of the Prince, who being the Source of Honour, can best judge of the Reasons for stopping the Stream; and it cannot seem an harder Case to disinherit him of the Honour then of the Estate, which he may do; and if he leave his Honour without his E­state, it will be a Burden on his Shoulders which he will be una­ble to bear; and seeing it's necessary that there be a concurrence of the Prince, it is undecent to suppose so vile a thing of the Crown, as to comply with the Peevishness and Simplicity of the Parents, where there is no reason for it: And as for what hath been alledg­ed for the Invalitity of those Precedents that they were in Cases of New Creations, and were in nature of Transmissions, he an­swered, That when an Honour is Surrendred, and a new Ho­nour granted, the former is either extinguished, or not, before the other takes effect; if not, then the Party hath both together against the will of the Donor; and perhaps the new Honour may be of that Name and Place, and those Persons may be concerned in it, that will not permit it to be effected; and if it be in the power of the Ancestor, for the advantage of his Posterity, by the Surrender of one Honour to take a greater, it may be also in his power to do it for his prejudice. As to the Objection, That by the same Reason an Honour may be extinguished it may also be Transferred; he answered, That there was a great disparity be­twixt them; for as to Alienations of Honours, there's a great rea­son they should be disallowed, for they all flow from the Prince, and therefore 'tis not fit they should be conferred on any but by the Prince; tho' the King's of England have granted power to a General to give the Honour of Knighthood, &c. in the Field, for the Reward and Incouragement of Valour; yet this granting of Nobility is a Prerogative peculiar to the King's Person alone; no Man else can ennoble another: Time was indeed, when the Earls of Chester, having Counties Palatine, by virtue of their Jura Re­galia did create Barons, yet they never sate in Parliament as Peers, because Peerage being a thing of so high a nature, cannot be gi­ven by any but a Soveraign, and is given as a Trust and Obligati­on, so that common Reason saith they are not transferrable. It is said in our Law, that where Offices are granted to a Man in Fee (See Jones 122, 123.) he may grant it over; yet in some Cases they are so near to the Crown, that they cannot be transferred, but must descend with the Blood, upon the same Reason no Man can ever transfer an Honour for the near Relation which it hath to the Crown; but in case of Extinguishment that Relation and Trust ceaseth, and so they are different Cases. Then lastly, as to the great Objection of the Judgment of the House of Lords in Roger Stafford's Case Anno 1640. he answered, That notwithstand­ing that Case, their Lordships had given him leave to argue it, and therefore they intended not that should be any Impediment. 2. That is no Judgment; for they being a Court of Judicature, do as other [Page 9]Judges, judge of the Matter before them only. Then the Que­stion was, Whether an Honour could descend to the half Blood? They refetred it to the Judges, who were of Opinion that it should. Thereupon ariseth another Question, Whether a Man might Convey or Transfer his Honour to another? 'Twas resol­ved he might not. This drew another Question; whereupon they resolved that a Lord could not Surrender his Dignity; the Original Cause was about a Descent to the half Blood, the Reso­lution is he cannot Surrender; how then can they pretend that to be a Judgment, when the Question in point of Judgment was not before them. Suppose it had been resolved (and it's a wonder it had not all that time) that a Lord could not forfeit, and that had been a third step to have made it a perfect Business; for con­sidering the times, it had been a most convenient Resolution: But besides all that, the King's Counsel were never heard in the point, and the rejecting the Opinions of Learned Men, shows it was no Resolution of the whole House, tho' entred upon the Jour­nal, and therefore he prayed Judgment against the Petitioner.

The Earl of Shaftsbury spoke in the House for the Petitioner.

The stress of the Argument for the King in this Case is found­ed upon these two Assertions:

1 That Honours are taken to be within the Statute de Donis, &c. and the general Rules of that Statute;

2. And then secondly, That Honours are to be governed as o­ther Inheritances, by the Rule of the Common Law.

As for the first, it hath not been proved; for the Resolution in Nevil's Case 2 Jac. was Extrajudicial, and no Judgment of any Cause before them; and in such Cases the Judges do not hold them­selves to be upon Oath; and if there be two or more of another Opinion, they do not refuse to sign the Resolution of the major part, and so it goes under the denomination of all the Judges; but if it were a Judgment of them altogether, they could neither alter nor make new the Law, neither could they make that intend­ed within the Statute de Donis, &c. which was not in being till many Ages after, Beauchamp in Richard the Second's time being the first Honour that was entailed by Patent.

2. The second Assertion is contrary to the Opinion of the most Learned Men, the Honour and Dignity of the House, the constant practise of Westminster-hall, and the direct Evidence of the thing it self. Justice Berkley, a very learned Judge, declared his Opi­nion Febr. 6. 1640. as appears by the Records of this House, That Honours descend from the first that was seized of them; contrary to the Rules of other Inheritances; and that Honours are not go­verned by the Rules of the Common Law. Justice Dodderidge, in Jones 207. is of opinion, That Honours are Personal Dignities which are affixed to the Blood; the Lords never yet suffered their Honours to be tried at any Court at Law, or any other where, save before themselves, tho' their other Inheritances are tried there [Page 10]as well as other Mens: So possessio fratris holds of Lands, but not of a Dignity, which is not disposed of as other Inheritances, nor will it be guided by the strict Rules of Law. The Lord Coke is of Opinion in Bedford's Case, That an Honour could not be ta­ken away but by Act of Parliament; therefore it will be allowed that the concurrence of all Parties concerned may extinguish this as well as other Inheritances, but the Concurrence of all can't be without Act of Parliament; for the whole Kingdom have an In­terest in the Peerage of every Lord: It is a dangerous Doctrine to say our Judicature and Legislature is our own only. The House of Lords is the next thing to the Crown, tho' that be far above them; yet those that reach at that, must take them out of the way first; they were voted useless and dangerous before the Crown was laid aside; and as in Descent of the Crown the whole King­dom hath such an Interest in it, as the King cannot Surrender or alien it, so in a proportionable degree, tho' far less, the King and Kingdom have an Interest in their Lordships, and Dignities, and Titles. It is true they may be forfeited, but it doth not follow that they may be extinguished by Surrender. There be two Rea­sons for the Forfeiture:

1. There is a Condition in Law that they shall be true and loy­al to the Government.

2. Honours are inherent in the Blood, and when that is cor­rupted, that which is inherent is taken away; but in case of a Surrender these Reasons do 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 'tis 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. 'tis to be [Page 11]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.

'Twas 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, [Page 13](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 [Page 14]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, 'tis 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. 'Twas 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 had of Liberty of Speech, not to make every thing a Cause of Action; and to justifie this, on the same side were quoted multitude of Cases, too many to deserve a remembrance.

It was argued on the other side, That these words toucht the Person in the most tender point, viz. his Loyalty; That it car­ried Scandal in it self, not to be zealously affected to the Govern­ment, which protects the whole; that it was equivalent in Com­mon Understanding, to the calling him Traytor or Rebel: That this was much more, than affirming one not to be a good Man; that disaffected implyed somewhat positive; it's meaning was, that the Party hath an aversion, a fixed, settled Enmity to the Govern­ment; that this was spoken of an Officer of great Trust; that 'twas a Reflection upon him with regard to his Office, for Loyal­ty is as necessary as Justice in such a Post; that to slander him in the one, ought to be as actionable as to slander him in the other; which is allowed it will, because of the Reference to the Office in the nature of the words, without any Special Damage: that to deny these words to be actionable, would tend to encourage Brea­ches of the Peace, by provoking Challenges, &c. for that, if Men cannot relieve themselves by Law, they will be tempted to do it of themselves in other methods; and that these words were a Reflection on the Government, which employed Men thus dis­affected; and abundance of the Common Cases upon this Subject were quoted, to shew what words would bear an Action in re­spect of Officers and Allegiance: And then 'twas argued strenuous­ly, that this was a Special Damage, viz. to lose the Prince's Fa­vour, which every Man ought to covet, and to lose a Place of Honour and Command, both which the Jury have Found.

It was replyed on the behalf of the Plaintiff in the Writ of Error, That as to the Reflection on the Government, it might perhaps warrant an Information or Indictment, but not an Acti­on: That as to Challenges, there were vast variety of words which are reckoned provocative in the highest degree, As the giving the Lie, calling a Man a Coward, and the like, and yet will bear no Action: And at last, upon Debate, the Judgment was Reversed.

John Duvall and Elizabeth his Wife, Appellants, Versus William Terrey of London Merchant, Respondent.

THE Appeal was to be relieved against a Decree in Chance­ry: The Case was, That the Appellant Elizabeth had en­tred into a Bond of 140 l. Penalty, conditioned for the payment of 72 l. on the Twentieth of April 1676. and by reason of seve­ral Promises and Delays of Payment, and insisting upon Privi­ledge, and other like Occasions, it was not put in Suit till lately, and then the Respondents were Arrested: And upon a Declara­tion, the Appellants pleaded Payment at the Day. And after [Page 16]Issue joyned, and notice of Trial, upon some discovery of a Defect in the Evidence to prove the Bond, Motion was made in the King's Bench to alter the Plea; which denied, a Bill was pre­ferred in Chancery, on suggestion that Elizabeth had never Exe­cuted it, or that 'twas obtained by Fraud, and that there was no Consideration for the same; and the Respondent preferred a Bill, praying a Discovery if such Bond, &c. Upon Examination of Witnesses, and after publication passed, the Cause was heard; and upon the hearing, 'twas ordered, That the Appellants should not be relieved, save against the Penalty of the Bond; and that it be referred to one of the Masters to compute the Principal-money and Interest due thereon, and to tax for the Respondent, his Costs, both at Law and in that Court; and that what should be found due for the Principal, Interest, and Costs, be paid by the Appellants at such Time and Place as the Master should appoint, who computed the Principal and Interest at 154 l. and the Costs at 67 l. and to be paid the Twentieth of October following.

Upon the hearing of this Appeal, there were two Queries made, 1. Whether, there being some difference in and about the proof of the Bond, the Court ought to have made a Decree without directing a Trial at Law upon the validity of the Bond: But 'twas held, That the Bond not being denied in pleading upon the Issue at Law, the Chancery had done right, and could not well have di­rected any other Issue than what the Parties themselves had joyned in at Law; and tho' 'twas pretended that the Attorney ha [...] pleaded thus without direction, the Court did not much regard that pre­tence, because of the proper Remedy which the Law gives against such an Attorney, if the pretence were true, and therefore they did not much consider that.

Another Query was, Whether the Court of Equity could justly award more than the Penalty? and objected, that the Order be­ing to save against the Penalty, no more ought to have been de­creed. But 'twas said, That notwithstanding that, when the same was referred to a Master to tax Principal and Interest, the Order bound the Party to pay both, tho' it amounted to more than the Penalty; and the meaning of the first part was only to relieve against the Penalty, in case the Principal and Interest came to less than the Penal Sum; especially the same coming to be heard upon cross Bills, and as this Case was circumstanced, after such delay and such pleading in the Court of King's Bench: And as to Costs, held no cause for an Appeal in this Case; nor in truth was it ever known to be a Cause, if the Merits were against the party Appellant. And so the Decree was affirmed in the whole.

William Dolphin and Katharine his Wife, Appellants, Versus Francis Haynes Respondent.

APpeal to be relieved against a Decree in Chancery made by the Master of the Rolls, Nov. 10. 1696. The Case was thus, That one Paris Slaughter of London, being Guardian to Ka­tharine the Appellant during her Infancy, he placed her with his Kinsman Chambers Slaughter near Worcester, and sometimes board­ed her in that place for her Education; and the Respondent and the said P.S. being Correspondents, Paris Slaughter ordered the Respondent to pay the said Chambers what Sums should be called for upon the account of Katharine: In pursuance whereof several Sums were paid upon her account, and the same were allowed a­gain to the Respondent by P. S. The Appellant Katharine ha­ving just attained her Age, she came to the Respondent, and de­sired more Money, as by the Order of P. S. and accordingly two several Sums were paid her, and Receipts taken from her, as by the Order of P. S. The Appellant Katharine did afterwards come to an account with P. S. which was fairly stated in Writing, and they executed General Releases each to the other: But the said two Sums, not being entred in the Books of P. S. were not ac­counted for by the Appellant Katharine; and the Respondent not having received any Allowance from P. S. in his Life time, nor having, as he thought, any sufficient Orders to charge the Ex­ecutor of P. S. with, he prefers his Bill against the Appellants, and by her Answer she own'd the Receipt of the two Sums, but by order of P. S. and afterwards, upon hearing of the Cause, The Court declared that there appearing no positive orders from P. S. for these two Sums, the Appellants ought to pay the Prin­cipal, Interest, and Costs: And a Decree was made accord­ingly.

And now it was argued on the behalf of the Appellants, That this was not just, because the Respondent never paid any Money to any Body while Katharine boarded with him, or afterwards, but by the Order and upon the Credit of P.S. and charged it to his Ac­count; and the Respondent did not pretend but that all was re­paid him, excepting these two Sums; that the Respondent and Katharine had never any Account or Dealings together upon her Credit; and 'tis to be presumed that the Respondent hath charg­ed these Sums upon the Account of P. S. and not to her Ac­count, because the Receipts are so worded; and that Katharine had released P. S. on their accounting together, and therefore she could not charge the Executor of P. S.

On the other side, it was argued, That here was a Badge of Fraud in the Appellant K, that upon her Account with P. S. no mention was had of these Sums; that the Debt was originally hers; that she was obliged to pay it, either to Slaughter or to [Page 18] Haynes; that not having paid the same to Slaughter, and Slaughter having released to her, she was discharged from all Demands on that side, and therefore 'twas the more reasonable it should be an­swered by her to the Respondent; that tho' the Credit might be at first given to Slaughter, yet the Money being paid to her, and not by her paid to Slaughter, Haynes had a fair Claim against her, even to avoid circuity of Suits; for if this were otherwise, 'twould only turn Haynes upon the Executor of Slaughter, and that Exe­ecutor upon Katharine the Appellant again in Equity to set aside the Release, and to have an allowance of these Sums; and that in Justice and Equity the Charge was placed upon the proper Party, who at first was the Debtor for what she thus received: And ac­cordingly the Decree was affirmed.

Dormer Sheppard & al' versus Joseph Wright & al'.

APpeal from a Decree of Dismission of a Bill preferred in the Court of Chancery: The Case was thus,

The Appellants did in the Year 1693. load on Board the Ship Ʋnion at Gallipoly 210 Tuns of Oyls, of which Ship the Appel­lants were Owners; and the Respondents loaded on Board her at Messina 85 Bales of Silk, upon Freight by Contract both to be de­livered at London. The Ship homeward bound was chased into Malaga Mould by one of the Thoulon Fleet, who were three or four days in sight, then stood in for that Port, as if designed to attack the Fort; and thereupon the Master discoursed the Owner's Factor, who sent him off a Lighter to save what they could of the Ships Cargo; and because the Silk was of the greatest value, the Silk was put on board the Lighter, and carried ashore; and to come at the Silk, (for it lay beyond the Oyls) they were forced to rummage the Ship: In saving of which, and some small part of the Oyls, many hours were spent, and by the Seamen only, and at Night the French left the Port, whereupon no more was land­ed. But about six days afterwards the French Fleet appeared a­gain before Malaga, and then all Endeavours were used to save the Oyls, but were prevented by the Boats which the French Men of War sent into the Harbour, and the Enemy forced them to their Guns, and when they could defend the Ship no longer, they bored holes to sink her, but the Oyls kept her from sinking, and the French took her, and carried her away. The Bales of Silk were afterwards put on board another Ship, and delivered to the Respondents at London, for which they paid the Freight, &c.

The Appellants pretending that they ought to have a share of the Silk which was saved, in proportion to the value of the Ship and Oyls which were lost, they exhibited their Bill in Chancery, to enforce the Respondents to come to an Average with the Ap­pellants for the loss of their Ship and Oyls. And after Exami­nation of Witnesses, on the hearing of the Cause, the Bill was dis­missed.

And it was argued on the behalf of the Appellants, That this Dismission was not justifiable by the Rules of Equity; for that it must be agreed, If Goods are thrown overboard in stress of Wea­ther, or in danger or just fear of Enemy, in order to save the Ship and rest of the Cargo, that which is saved shall contribute to a Re­paration of that which is lost, and the Owners shall be Contributors in proportion; and that there was the same Reason here; that by preferring the salvage of the Silk (being the best of the Cargo) before the Oyls, the Owners were deprived of the same opportu­nity for the salvage of the Oyls; that as the Sea-law in Extremi­ty directs the Master to preserve the best of his Cargo, and the Goods saved ought to contribute to the loss of the Goods Ejected; so where one is preferred before the other in case of Extremity, there being not time to land the whole, average is just and rea­sonable. And as to the six days time, there was then no appre­hension of danger, and consequently the Master could not justi­fie the landing of any thing after the reason of their Fears were removed.

That the prudence of their Master in saving the Silk before the Oyls, ought not to be to the prejudice of the Owners interest, the Oyls lying next to be preserved; that the pretended neglect of the Master, in not landing them during the absence of the E­nemy, is no Excuse, because then there was no danger; that the saying that the loss of the Ship and Oyls did not contribute to the salvage of the Silks, is no reason, seeing the salvage of the Silk (which had otherwise been lost) deprived the Owners of the same opportunity for the salvage of the other Goods; that in such Adventures, as the danger is common, so ought the loss or da­mage to be common and equal; that the Master is equally intrust­ed by and for all; and were it otherwise, it had been the Duty, and will be the Interest of all Owners of Ships to order their Servants in Extremity to preserve their own Goods; that the Silk, being of the greatest value, it was a National Service, to preserve that before the Oyls, and therefore equitable that all who embark in the same Bottom, should share alike in the Service done for Salvage, &c. And further, that if in Extremity, the safety of the best of the Ships Cargo is not preferrable before that of the mean­er value, it will be of ill consequence; and therefore the Sea-law provides first for the Safety of the best of the Cargo, and the Master acted accordingly and that 'tis the Opinion of those who are learned in the Maritime Laws, That where Freighters Goods are equally in danger, and a like opportunity for the salvage thereof, if the safety of the one be preferred, and the other comes to be [Page 20]lost, such preference obliges the Goods preserved to contribute to those which are lost; it being a General Rule in Causes Maritime, That one Man's Interest ought not to suffer for the Safety of ano­thers.

On the other side, it was argued with the Decree, That this Pretence was new; that 'twas a Notion unpresidented; that the Rule of Averidge went only to the cases, where the loss of one Man's Goods contributed to the safety of anothers, as by Light­ning the Vessel, &c. and not to this Case; that here each Man was to undergo the Peril of his own Goods; that in case of Damage to Goods within the Vessel, other Goods were not contributory, but the Owner must endure his own loss, and had only his Re­medy against the Master, if it were occasioned by his Defect or Miscarriage: that the reason of Averidge was a meritorious Consideration in the common Case, because there the loss of one did actually save the other; but here was no such thing: The loss of these Oyls did not save the Silk, nor did the saving of the Silk lose the Oyls; for if the Silk had not been saved, the Oyls had been lost, for they were so bulky that they could not easily be removed without further time; and if part only be saved, 'tis to the advantage of the Owner; and where all can­not be saved at a time, the Benefit is accidental to him, whose Goods the Master's discretion directs to be saved: And in this case here was no such Commodity, as could contribute to the loss of a Ship, if it had been kept on Board; for the Silk, if on Board, had not assisted to her sinking. But besides, here were six or eight days between the landing of the Silk and the seiz­ing of the Ship by the French, in which time all the Oyls might have been landed, and thereby both them and the Ship saved; and the apprehension of the Danger could not so soon be re­moved by losing sight of the Enemy in the Morning, and there­fore there was no reason for the Master immediately to forbear landing his Oyls. Therefore 'twas prayed that the Appeal might be dismissed, and the same was accordingly done, and the De­cree of Dismission below affirmed.

Whitfield & Ux' & al' Appellants, versus Paylor & Ux' & al' Respondents.

APpeal from a Decree in Chancery: The Case was thus, Sir Law­rence Stoughton, a young Baronet in Surrey, having an Estate of near 1000 l. per Annum, was a Servant to the Respondent Mary, the Daughter of one Burnaby a Brewer, reputed to be very rich. Upon the first Proposal of Marriage, Burnaby did agree to give 5000 l. certain, and insisted to have a Jointure of 500 l. per An. [Page 21]settled, and that she should have the Inheritance of the Jointure, if he died without Issue. Sir Lawrence did refuse to agree to this; but afterwards he renewed the Treaty himself, and accepted of Articles for payment of 5000 l. Portion, and made a Settlement of a Jointure of Lands worth 500 l. per Annum; and likewise made another Deed in the nature of a Mortgage of all his Estate, as well the Reversion of her Jointure as the rest, for securing the payment of 5000 l. to her in case Sir Lawrence died without Issue; and died within a Fortnight after Marriage, without Issue. The Lady Stoughton prefers her Bill, and prays the Appellants might be fore-closed of the Equity of Redemption on Failure of Payment. The Appellants exhibit their Bill to be relieved against this as a Fraud; and upon hearing of these Causes before the Master of the Rolls, the Appellants were decreed to pay the 5000 l. by the first Day of Hillary Term, 1695. without Interest, but with Costs: And in default, the estate to be sold to raise it with Interest from that Day: And upon a re-hearing before the Lord Keeper, his Lordship confirmed the Decrees, and gave a Twelve-months further time for payment.

And now it was argued for the Appellant, That it was proved in the Cause, that Sir Lawrence was a sickly weak Man; that on his Death-bed he declared he had made no such Agreement; but that the 5000 l. was to pay his Debts, and no part of it was to re­turn to his Wife, and his Wife present, and not contradicting it; that it did not appear, that he had any Counterpart of this Deed, or that he ever advised or acquainted any of his own Relations with it; and the Draught of the Deed was confessed to be burnt. And further, that the Agreement in its own nature was unreason­able; that she should have both Portion and Jointure; and that one was a merit for the other; but that both should be vested in the same Person, the Portion returned, and the Jointure enjoyed, was very hard, and therefore to be set aside: That Equity was to re­lieve against such pretended Agreements, as things done without any Consideration inducing them, and therefore void.

On the other side, 'twas insisted on for the Decree, That the Man was of Age; that there were two Treaties of Marriage, which shews a deliberation; that here was no mis-representation or im­position; the Bargain in it self might be upon good reason; the Gentleman being sickly; and the Money was to be returned only upon a Contingency of his dying without Issue; that in case of his having Issue, the Agreement was common; that perhaps she had the worst on't under all Circumstances; that all Bargains are not to be set aside, because not such as the wisest People would make; but there must be Fraud to make void their Acts; and his forgetting that he had done such an Act, when on his Death-bed, is no reason for to annul it; and the Marriage had been a good Consideration for a Jointure of it self: And reasonable or unreasonable is not al­ways the question in Equity, if each Party was acquainted with the whole, and meant what they did; much less is it sufficient to say that 'twas unreasonable as it hapned in event; for if at the time [Page 22]'twas a tolerable Bargain; nay, if at the time this Bargain was the meaning of the Parties, and each knew what was done, and neither was deceived, the same must stand: And accordingly the Decree was affirmed.

Thomas Arnold Appellant. Versus • Mr. Attorney General, Respondents. , • Matthew Johnson Esq; Respondents. , and • Thomas Bedford Gent. Respondents. 

APpeal from a Decree in Chancery: The Case was thus, One Edmund Arnold Proctor, being seized in Fee of the Mannor of Furthoe to the yearly value of 240 l. per Annum, and also of some Personal Estate; but having no Child or Brother living, made his Will in writing, and thereby, amongst other Legacies, to many other Persons, he gave to the Appellant, by the Name of his Kinsman Thomas Arnold, the Sum of 40 s. all to be paid out of his Personal Estate; and then proceeds in these words, Being de­termined to settle for the future, after the death of me and my Wife, the Mannor of Furthoe, with all the Lands, Woods, and Appurte­tenances to charitable Ʋses. I devise my Mannor of Furthoe, with the Appurtenances, unto Sir Lionel Jenkins Kt. William Dyer, Mat­thew Johnson, and Thomas Bedford, and to their Heirs and As­signs for ever, upon trust, that they or their Assigns, after the death of him and his Wife should pay and deliver yearly for ever, several particu­lar Sums to Charitable Ʋses therein mentioned: All the Particulars amounting in the whole to 120 l. per Annum, and charged no­thing further on the said Mannor, but the Expences of the Tru­stees in the Execution of the said Trust. The said Arnold soon af­fter died; the Wife is also since dead. Sir Lionel Jenkyns and William Dyer also dead.

In Trinity 1692. the Attorney General prefers a Bill against the Appellant as Heir at Law to settle and establish the said Charities, and to enforce the Trustees to act or to transfer their trust Estate. To which they answer, and the Heir by his Answer claimed as Heir at Law, the Surplus of the Charity Estate over and above what would satisfie the yearly Payments expressed in the Will, and the Charges of executing the said Trust; upon a Reference to a Master, to ascertain the Court of the yearly value of the Man­nor; he reports it worth 240 l. per Annum, and worth the same at the time of making the Will. And on hearing the Cause, the Court declared, That all the Profits of the Premisses, ought by the purport and intention of the Will, to be applied to the Cha­rities therein mentioned; and that the Appellant Arnold the Heir at Law is totally excluded from the Surplus, with direction how [Page 23]the Surplus should go in augmentation of some of the Charities; nevertheless, in case the Appellant should Seal and Execute to the Trustees a Release and Conveyance of the Premisses, according to the Decree, then he to have his Costs out of the Sale of Tim­ber, and that the Trustees be indempnified.

And it was argued on behalf of the Appellant, That this De­cree was not equitable. Some Questions were made about the distribution of the Surplus amongst only some of the Charities, and about the value; but a Surplus was agreed to be in the Case; and 'twas chiefly insisted upon, that the Surplus ought to go and be to and for the use of the Heir at Law; for that the Estate is not increased by any subsequent or accidental Improvement, and so not like the Case of Thetford School; but here at the time of making the said Will, was, and now is, of a good value beyond the Sums given, and was so known to be by the Testator; and the particular Charities given by the Testator are particularly and expresly named and limited, and do amount only to so much, as is less than the value of the Land; and thS urplus is not dispo­sed of, and consequently ought to be the Heirs: For as at the Common Law in a Will, what is not given away must descend, whether you speak of Land, or the interest in it; so in Equity, whatsoever Trust, or part of a Trust, is not declared and expres­sed, the same shall be for the benefit of the Representative of the Testator, either Heir or Executor, as the Case may happen: Then these Bequests or Devises being particular and express, they do and will controul and expound, nay restrain and qualifie the meaning of general precedent words: That Expression of his being de­termined to settle his Mannor to charitable Uses, will be qualified by the Particulars afterwards, as is Nokes's Case in 4 Rep. and many others in the Books. Besides, 'tis not accompanied with any term of Universality, that excludes the Construction contended for; and if it had been so largely expressed, those general words of his de­signing to settle the whole, may be intended only as a Security, that the particular Charities may be certainly answered: And by such Construction all the words of the Will may be satisfied; and then the Trustees may convey the Premisses to the Heir at Law, and take Security for the same, saving and reserving all the said Charities devised, with all reasonable Charges and Deducti­ons, without prejudice to the Will of the Testator, or to the said Estate, which must nevertheless be liable to answer and make good the same; so that there can be no Damage done to any of the Parties or Interests concerned, by this Construction; nay, it is the adding a further Security for their payment. Now it is plain, he designed the Sums given to the particular Uses, and no more, for that they are all so particular and express; and it is pursuant to the Rules of Law and Equity, in all doubtful Cases, to adjudge in favour of the Heir at Law, and not to extend the general words of a Will, to enlarge a Charity beyond the intent expressed, especially against a near Relation and Heir, as this is, viz. his Brother's Son. [Page 24]Besides, the Testator was bred a Civilian, and as such, knew how fully to express himself, if he had intended the Overplus to go in increase of the Charity: Or if he had intended them more then is mentioned, he would have declared himself in such manner as should exclude all doubt.

On the other side, it was argued, That the Testator's intent plainly appeared by his Will to dispose all his Estate wholly to charitable Uses; and that the words of the Will were sufficient to carry the whole Estate to that purpose; and that it did not ap­pear by his Will, that 'twas his intent to give his Heir at Law any thing out of his Real Estate; that his determination to settle his Mannor, with the Appurtenances, was to settle the whole; that what is not disposed of in Particulars, is to be directed by the Court of Chancery; that that Court hath done right in directing it in augmentation of the Charities mentioned, because the Te­stator's intent was most in favour of those which are so mention­ed: That if the Query were askt, What shall be done with the Surplus, if any? The Answer is natural, viz. I am determined to settle the Mannor, that is the whole, on Charitable Uses: That the Testator by his Will expressed some Care for his Sister, and for John Boncher his Nephew, and other his near Relations; but neither by any Expression or Implication, pointeth at any provi­sion designed for his Heir at Law; but for the Excluding him of all Pretences, hath bequeathed him 40 s. and no more: that the other is to contradict his plain Intent; 'tis to make a new Will for him, contrary to the determination which he saith he had made: And accordingly the Decree was affirmed.

Sir Richard Dutton Plaintiff, Versus Richard Howell, Richard Grey, and Robert Chaplain, Executors of Sir John 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 [Page 25]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 [Page 26]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 [Page 27]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; 'tis 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 'twere 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 [Page 28]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 'twas prayed that the Judg­ment should be reversed.

On the other side, 'twas 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; 'tis 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 [Page 29]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 'tis a Court, whether more or less, and so it hath been time out of Mind. But here's a new Constitution; and the Rule holds so in Commissions of Oyer and Terminer, if the direction be so: as is the Case in Plowden 384. the Earl of Leicester's Case. If a Mayor and three Aldermen have Conusance of Pleas, what a Mayor and two does is null and void. And if there be no dire­ction in particular for the number, the Law requires the majority. So that here was no Councel, because but five of them present.

The Councel have not the power, but the Governour with the Advice and Assent of the Councel; and so ought their pleading to have been according to their Case; That if a Man ju­stifies as a Judge to excuse him from an Action, he must set forth his Authority, and the Cause must appear to be within his Conu­sance; and so are multitudes of Cases, 3 Cro. 130. 2 Leon. pl. 43. and 1 Cro. 153, 557, 579, 593. 12 Rep. 23, 25. Mod. Rep. 119.

But taking it as a Councel, neither Person nor Thing are with­in its Jurisdiction; for if their Doctrine be true, that by being Governour, he is so absolute, as to be subject only to the King; then what Sir John Witham did, being while, and as Deputy Go­vernour, which is the true Governour to all purposes in absentia of the other, is not examinable by a Successor. But admitting for the present, that by the Law one Magistrate may be punishable be­fore his Successor for Miscarriages which were committed colore Officii; yet here are no such Miscarriages sufficiently alledged to be charged on him. 1. There's no pretence of an Oath, nor Cir­cumstances shewing a reasonable Cause of Suspicion, one of which ought to have been. 2. In pleading no Allegation is sufficient, if it be so general, as the Party opponent can't in reason be supposed ca­pable of making an Answer to it; and that is the true Cause why our Law requires Certainty: He did male & arbitrarie execute the Office to the Oppression of the King's Subjects. No Man living can defend himself on so general a Charge as this is: for if Issue had been taken thereon, all the Acts of his Government had been examinable, which the Law never allows: Then the Particulars are as general; 1. That he did not take the usual Oath; and it doth not appear what Oath, or if any was requirable of a Deputy Governour, nor who was to administer it; so that non constat, whe­ther 'twas his Fault or the Governours; besides, that's no cause of Im­prisonment, for any thing which appears in the Plea. 2. Assuming illegally the Title of Lieutanant Governour; that is so trivial, as it needs no Answer; for Deputy Governour and Lieutenant Governour are all one, locum tenens is a Deputy, & è contra. 3. Altering of Orders at his Chamber ad libitum, which were made in Court; not said that there was any such Court, or what Or­ders, or where made; & non tantum without etiam or ve­rum [Page 30]etiam, is not a sufficient positive Allegation: not said that he was guilty, but only charged; and not said how charged, whe­ther with or without Oath, in writing or by parol: nor said to be in any such manner as that the Councel ought or might receive it: tho' Oath be not necessary to be mentioned in the Commitment, yet it ought to be alledged in pleading, because 'tis necessary to warrant the Commitment, as was held in the Lord Yarmouth's Case in B.R. It could not be to secure his answering the same, for not so expressed; and 'tis not said that Sureties were demanded or denied, or that he had notice of the Charge; and surely this was bailable.

As to the Query, If conusable here; 'twas argued, That they had not pleaded to the Jur', nor any Matter to oust the Court of its Jur': If they intended by this Plea to have done that, they should have given Jur' to some other Court in some other place, but this is not done; for if an Injury, 'tis relievable somewhere in the King's Dominions; and whether it be so, or not, is exami­nable somewhere: Now here is a Wrong complain'd of, as done by one English-man to another English-man, and a Jur' attacht in the King's Bench, both of Cause and Person, by the Bill filed, and his Defence to it: besides Jur' could not be examined in the Exchequer Chamber, because both the Statute and the Writ of Er­ror expresly provide against it, and. this Writ of Error is founded upon that Affirmance, and therefore questionable, whether that could be insisted on here? But supposing it might, 'twas argued that the Action lies, for that 'tis a transitory Action, and follows the Person wheresoever he comes under the power of the Common Law Process: and that a Man may as well be sued in England for a Trespass done beyond Sea, as in Barbadoes, or the like place; as for a Debt arising there by Specialty, or other Contract, that no Body but Prynne ever denied it, and he did so only in case of Bonds dated there: That many Actions have been maintained and tried here for Facts done in the Indies, notwith­standing special Justifications to them, and the Trials have been where the Actions were laid: There was quoted Dowdale's Case, 6 Rep. 47, 48. and 7 Rep. 27. and if otherwise, there would be a failure of Justice in the King's Dominions, 32 Hen. 6.25. vide Jackson and Crispe's Case, Sid. 462. 2 Keeble 391, 397.

'Twas then argued, That whatsoever question might be made about the Trial of the Issue, if one had been joyned; yet now Demurrer being to the Plea, if that Plea be naught, then the Plaintiff is to have Judgment upon his Declaration, and that is all right.

It was further said, That the Justification of such a tort or wrong ought to be according to the Common Law of England, for that Barbadoes is under the same Law as England; and if 'twere not, upon his pleading it must be intended to be so; and tho' they should be intended different, yet the Defendant in the Action was obliged to the same Rules of Pleading: for tho' the Matter may justifie him for an Act done there, which would not justifie him for the same Act done here, yet he must shew that he hath [Page 31]pursued the Rules of Law in that place; or in case of no po­sitive Laws, the Rules of Natural Equity: for either the Common Law, or new instituted Laws, or natural Equity, must be the Rule in those places.

'Twas agreed, That according to Calvin's Case, 7 Rep. 17. upon the Conquest of an Infidel Country, all the old Laws are abroga­ted ex instanti, and the King imposes what he pleases; and in case of the Conquest of a Christian Country, he may change them at pleasure, and appoint such as he thinks fit; tho' Coke quotes no Authority for it, yet 'twas agreed, that this might be consonant to reason. But 'twas denied that Barbadoes was a Conquest, 'twas 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 'tis 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, 'Twas 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. 'Twas 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. 'tis said, Inasmuch as the Plantations are inhabited which his Subjects of England; and so 'tis 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 'tis natural to infer, That the Rules in case of conquered Places cannot prevail here; Conquest est res odiosa, and never to be presumed; besides, 'tis 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 [Page 32]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 'twas their Birthright, and as 'tis the best, and so to be presumed their Choice; and not only that, but even as obligatory, 'tis 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 'twas argued further, If 'twere 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 Ship­board, 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. 'Tis 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 'twas 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, 'twas 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 'twas 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, 'tis 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 [Page 33]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 'twas 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 'twas 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 'twould 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 'tis 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 'twas 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 'tis 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 'twas 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 'tis not al­ledged in the Pleadings, that the Charge in Councel against Wy­tham was upon Oath; they answered, That 'tis 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 'twas 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 'tis 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 forth­coming [Page 35]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 Ʋniversitat' 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 the Oath required of the Rector, That so long as he should remain in that Office, he should be true and faithful to the Colledge, and its Lands, Tenements, Possessions Ecclesiastical and Secular, Rights, Liberties and Priviledges, and all its Goods, moveable and immoveable, would keep and de­fend, and all the Statutes, Ordinances, and Customs of the Col­ledge he would observe, and endeavour that they should be ob­served by all Scholars, Graduates and Under-graduates, &c. That he would occasion no Trouble or Grievance to any of the Scholars contra justitiam charitatem & fraternitatem, But according to the best of his Judgment and Conscience, he would cause due Discipline to be used according to the form of the Statutes of the [Page 36]Colledge: That he would maintain and defend all Suits for the Colledge, but never begin one wherein any Disadvantage or great Prejudice may happen to the Colledge, without the deliberate con­sent of the major part of the Fellows. And if any variance happen between him and the Scholars, and the same be not end­ed within ten or twenty Days, by the Sub-rector, Dean, and three Senior Scholars of the Colledge, that then he would stand to the direction of the Chancellor, or in his absence, of the Vice-Chancellor or his Commissary, and his Award would faithfully observe, & si contigerit me in posterum propter mea demerita, seu causas in statut' content' juxta formam statorum ab officio me [...] ex­pelli seu alias amoveri, omnibus & singulis juris & fact' remediis per quae vel quae petere me possim reconciliari vel in integrum restitui circa praemissa quantumcunque aliis probitat' & vitae merita mihi Suf­fragentur in vim pacti renuncio in his scriptis, and that he would observe the Statutes, according to the plain Grammatical Sence, &c.

Then they find another Statute, Si quis Scholarium vel Electo­rum, be convict of Adultery, Incontinency, heresis pertinacis, wil­ful Homicide, manifest Perjury, frequent Drunkenness, alterius­que publicae turpitudinis, before the Rector, Sub-rector, Dean, and five other Senior Scholars, or the major part of them, with the consent of the said Rector, he shall be ipso facto expelled, nulla a­lia monitione praemissa. And in the same Statute (which is intitu­led de causis propter quas Scholares privari debeant, & de dissentioni­bus sedandis) 'tis farther established, quod si aliqua discordia ira, rixae ant dissentionis materia (quod absit) in dicto Collegio suborta sit, qualitercunque inter quoscunque Scholares, aut alios in dicto Collegio morantes, nisi sic dissentiones intra unum diem intra se concordent tunc celerius cautius & melius quo fieri potuit per praedict' Rectorem, vel in ejus absentia Sub-rectorem, & tres Scholares, ex praesentibus in Collegio omnino Seniores intra bidnum sedetur & pacificetur hujusmo­di dissentio; si vero ipsi ad eand' sedand' non sufficiant, tum Re­ctor (assumpto sibi Sub-rectore, Decano, & aliis quinque Scholaribus omnino Senioribus per quos veris' sedari poterit) summarie & de pla­no eam examinat sicque finis discordie, ire, dissentioni, & jurgij hujusmodi, favore, partialitate, ira, odio, & invidia quibuscunque cessantibus intra tres dies lapsum illius bidui immediate sequentes im­ponatur: & quicquid Rector cum praed' vel major' parte corundem duxerit ordinandum & agendum per partes discordantes firmiter in virtute eorum juramenti observetur & executioni absque contradictione cujuscunque demandetur: nec liceat alicui de dicto Collegio cujuscun­que gradus aut status extiterit occasione rixae jurgij aut dissentionis in­tra dictum Collegium aut extra intra eosdem orte vel mote prosecutionem facere, aut litem aliquam movere vel aliquem impetere, aut adjudi­cium trabere, coram aliquo judice extrinseco Ecclesiastico vel Secular' sed volumus omnino quod hujusmodi jurgia ire rixe discordia & dissentio­nes (quae per Dei gratiam raro aut nunquam contingent) per personas praedict' aliqua ordinatione bona seu concordia terminentur & finientur.

The Jury finds, That from the Foundation of the Colledge there was, and yet is, quidam ordo Scholiarium, vocat' veri & per­petui Scholares, and that by the Statutes, every Scholar who hath passed his Probation Year, and is approved to be a true and per­petual Scholar, shall take an Oath before the Rector, or in his absence before the Sub-rector, &c. to observe the Statutes of the Colledge, and to endeavour that others observe them too, or o­therwise to undergo the Penalties on them inflicted, without contradiction, according to the true form and effect of these Sta­tutes: To obey all Injunctions, Expositions, and Constructions by the Reverend Bishops, Successors of the first and original Founder, super dubiis Statut' emergentibus ad eosdem Episcopos ex consensu Rectoris & majoris partis Scholarium delat' faciendis: to be true to the Colledge, neither to do, nor wittingly to suffer to be done, any Prejudice, Damage, or Scandal to the same, to obey, assist, and reverence the Rector, Sub-rector, &c. and other Su­periours, Scholars in licitis ac honestis & maxime in eorum conven­tionibus & in negotiis Collegij quatenus Statuta jubent aut requirant effectually to obey all Directions and Orders of the Rector, Sub­rector, &c. to maintain and defend the Rights and Liberties, the honesty and good fame of the College, and its Scholars, &c. I­tem si contingat me posthac per Rectorem aut in hujusmodi rebus ha­bentes interesse corrigi, & puniri, aut a dicti Collegii sustentatione eji­ci & expelli, excludi, privari, vel amoveri praeter mea forsan deme­rita, ipsum Rectorem seu alias personas seu eorum aliquem, occasione expulsionis vel correctionis hujusmodi nunquam prosequar', molestabo, vel inquietabo, per me alium vel alios, sen ab aliis prosequi vel mole­stari seu inquietari ea de causa quautum in me fuerit permittam: sed sponte simpliciter vel absolute, omni actioni, contra Rectorem aut alios dicti Collegij Scholares quomodo libet appellationi & querelae in ea parte faciendis, ac quorumcunque literar' impetrationi precibus principum, praelatorum, procerum, magnaium, & aliorum quorumcunque quibus post ad jus titulum & possessionem vindicandum reconciliari, ac qui­buscunque juris & facti remediis per que me petere possem integrum re­stitui, quantumcunque alias mihi probitatis & vitae merita suffragan­tur, in vim pacti renuntio: To be just and impartial in Election of Scholars, not to reveal the Secrets, &c. not to desert the Col­ledge to be of another, without license, &c.

The Jury further finds, That according to the Statutes there are probationary Scholars, who are to be such for a Year, before they be admitted to be true and perpetual Scholars, and that eve­ry one chosen in for a Probationer, shall swear that he cannot certainly expend above four Marks per Annum; to be true to the Colledge, and not to reveal Secrets to its scandal, prejudice, or danger; not to make or procure any Conventicles, Conspiracies, or Contracts against the Ordinances and Statutes of the Colledge, or the honour of the Colledge or the Rector, &c. to promote Peace there, & si conting at me (quod absit) juxta formam & exi­gentiam Statutor' a praedict' Collegio expelli seu amoveri per Rectorem & alias person' in hujusmodi expulsione interesse habentes, &c. in like manner as the perpetual Scholars swear.

Then the Jury find the Statute de Visitatione, reciting how prone Mankind is to Evil, and Time changeth the best things, and that 'tis impossible to make Laws, but by Mis-construction, Fraud, or other Practise may be dissolved, that he confided in the Bishops of Exeter his Successors (quos dicti Collegij Patronos & visitatores relin­quimus) that those who are brought thither through fervent Cha­rity, being inflamed with Christian Faith, might watch to the preserving that Nursery, that the Statutes and Ordinances of the Colledge might be studiously observed, Vertue and Learning be nourished, their Possessions and Goods, spiritual and temporal, may flourish, their Rights, Liberties, and Priviledges may be de­fended: Ea de causa liceat Domino Episcopo Exon' qui pro tempore fuerit, & nulli alij nec aliis quoties per Rectorem dicti Collegij & in ejus absentia Sub-rectorem & quatuor alios ad minus ex septem maxi­me senioribus Scholaribus fuerit requisitus, necnon absque requisitione ulla de quinquennio in quinquennium semel ad dictum Collegium per se vel suum Commissar' quem duxerit deputandum, libere accedere; cui quidem Reverendo—He gives full power upon all Articles in the Statutes contained, and other Articles concerning the Estates, Ho­nours, or Profits of the Colledge, to interrogate and examine the Rector, Scholars, and elect, and to compel them by Oath, and Cen­sures if need be, to say the Truth, and all Crimes and Offences of the said Colledge whatsoever, Commissa & in ea visitatione Com­perta, according to the quality of the Offence to punish and re­form, and to do all things requisite quoad eorum correctionem & reformationem etiamsi ad deprivationem seu amotionem Rectoris Sub­rectoris aut alterius cujusquam ab administratione sua vel officio sive ad amotionem alicujus Scholaris vel Electi ab eodem Collegio, Statut' & Ordinationibus id exigentibus, procedere contingat: Stat' insuper, that none in dictis visitationibus in dicto Collegio faciend' contra Re­ctorem Sub-rectorem aut aliquem alium ipsius Collegij quemcunque dicat deponat seu denunciat nisi quod verum crediderit seu de quo publica vox­vel fama labor averit contra eundem in virtute juramenti ab eo prius Col­legij praestiti: Ordinantes praeterea ut Dominus Episcopus Exon cum in persona propria visitare aut praemiss' facere dignatur, Rector & duo Scholares ex praesentibus maxime Senioribus unam in Collegio refectio­nem quadraginta solidor' expensas non excedentem eidem Episcopo hu­militer & reverenter offerent. Commissario autem cum praemissa fece­rit duas refectiones in Collegio vel viginti solidos per manus Rectoris de bonis Collegij persolvi concedimus pro omnibus laboribus & expensis in hanc Causam tam in itinere quam in Ʋniversitate tempore hujus visita­tionis. Itaque Dominus Episcopus quadragint' solid' Commissarius vero viginti solid' in uno & eodem anno pro actu visitationis ad sumptus Col­legij non excedat; nec inceptam aliquam visitationem ultra duos dies proxime sequentes, aut ex causis urgentissimis & rarissimis ultra tres dies prorogari aut continuari ullo pacto volumus sed lapso & acto illo biduo & quando de causis praedict' ulterius prorogatur triduo transacto ea ipsa visitatio illa pro terminata & dissoluta habeatur.

Et si quae in ea comperirent corrigenda & reformanda que brevitate temporis corrigere & reformari non potuerint, ea rectori in scriptis tra­dat, qui ea omnia secundum formam & exigentiam statutorum sine di­latione quantum in eo erit corrigere & reformare tenebitur sub poena contemptus: Then in the Name of Jesus, and as they will answer it at the last Tribunal, that neither for fear, hatred, favour, ill­will, vel prece, vel pretio, they do or neglect to do any of the Premises, &c.

Statuimus preterea, ut Rector subrector scholares aut alius quispiam cujuscun (que) sortis dicti collegii super Excessibus vel delictis in Visitati­onibus & inquisitionibus per dictum Episcop' Exon vel ejus commissa­rium ut permittitur faciendis accusatus vel detectus copiae compertorum vel detectorum hujusmodi tradidi aut ostendi aut nomina detegenti­um non ostendantur: sed sup' iisdem compertis aut detectis statim co­ram Episcop' vel ejus commissario personaliter respondeat ac correctio­nem debitam subeat pro eisdem secund' tenor' statut' cessantibus quibus­cun (que) provocationibus appellationibus querelis & aliis juris & facti remediis per quae ipsius correctio & punitio deferri seu impediri vale­at.

Si tamen ad privationem aut inhabilitatem rectoris aut expulsionem scolaris alicujus per Episcop' aut ejus commissarium agatur: tum osten­dantur ei delicta, quibus si non potuerit rationabiliter & honeste re­spondere suam (que) innocentiam probabiliter ostendere, & sese super ob­jectis juste purgare, amoveatur sine appellatione aut ulteriori remedio; Dummodo ad ejus expulsionem concurrat consensus Rectoris & trium ex septem maxime senioribus Scholaribus tunc in universitate praesenti­bus; sine quorum consensu irrita sit hujusmodi expulsio & nulla ipso facto: & in sup' si contra Rectorem ad amotionem ab officio per hu­jusmodi Domini Episcop' commissarium, etiam consentientibus quatu­or ex septem maxime senioribus supradictis procedat' non negamus ei omnes exceptiones defentiones justas & honestas, apud ipsum Dom' Episcopum Exon dummodo ulterius non appellat, non obstante hac or­dinatione praedicta aut aliis quibuscunque.

The Jury further find, that in another Statute, propter quas cau­sas Rector officio privari debet. It is thus, Cum bono provido (que) Re­ctore nihil sit utilius; & imprudenti, inepto, indigno, penitus inha­bili, criminoso nihil sit detestabilius: statuimus ut Rector quicunque propter terrarum, tenementorum, reddituum, possessionum spiritualium aut temporalium sua culpa diminutionem seu alienationem, vel prop­ter detractionem ablationem alienationem illicitam bonorum & rerum ipsius Cellegii, infamiam, adulterium incontinentiam (que) negligentiam intolerabilem, heresin pertinacem homicidium voluntarium, perjuriam manifestum, crebram ebrietatem, & propter longiorem absentiam a Collegio quam Statuta permittunt, vel procurationem sui sibi officii per largitiones inhonestas datas dandas vel promissaes, vel quacun (que) via aut modo illicito, & propter usuram, simoniam, aliamve causam ipsum Rectorem reddentem criminaliter irregularem vel aliter penitus inhabi­lem; necnon propter infirmitatem infectivam & contagiosa' perpetuam, cujus occasione non poterit abs (que) scandalo officium hujusmodi exercere, ab eo penitus amoveatur, Ad cnj [...] amotionens hoc modo procedatur, [Page 40]viz. ut statim vel saltem inter quindecim dies postquam aliquid pre­missor' commiserit vel in eorum aliquod inciderit, primo per sub-re­ctorem, assistentibus ei quin (que) scholaribus maxime senioribus dicti Colle­gii moveatur Rector ei (que) bonis rationibus suadeant ad voluntarie ce­dendum officio: quod si sponte inter triduum cedere noluerit, tunc intra octo dies post hujusmodi monitionem subrectoris assensu & testi­monio omnium perpetuorum soholarium dicti Collegii, vel saltem ma­joris partis eorundem, denunciabit' Domino Episcopo Exon qui pro tempore fuerit, per duo's ipsius Collegii scholares omnino seniores, cum litteris aliquo sigillo authentico, ac signo & subscriptione alicujus Notarii publici signatis, vel saltem loco sigilli authentici, subscriptione subrectoris, ut prefertur, & majoris partis scholarium ac notarii pub­lici signo communitis causas defectus crimina excessus vel enormia Rectoriis continentibus, proviso quod omnes hujusmodi attestantes, ac testimonium perhibentes, prius tactis sacrosanctis Dei Evangeliis coram subrectore, ipso primum id coram illis presentante, ac deinde a singulis corum id exigente, jurabunt, quod non per invidiam, maliti­am odium vel timorem, nor for love nor honour of any other to be promoted to the place, nor for Emulation nor Envy, or by Conspiracy or the procuration of any other they did testifie it, but merely from a good zeal and love for the College, and the good Estate thereof: that the Bishop or his Vicar, de causis criminibus excessibus & defectibus contra rectorem propositis sumam' & de plano & extra strepitum judicialem cognoscat, and if by suffi­cient proof he find the Accusation true, he shall immediately re­move him from his Office and Administration, and enjoyn the Scholars to proceed to the Election of a new Rector, according to the form of the Statute aforesaid: Cessantibus appellationibus—querelis aut cujuscun (que) alterius Juris & facti remediis quibus hujusmo­di amotio valeat impediri aut disserri, quae omnia irrita esse volumus Statuimus & decrevimus ipso facto.

The Jury find further, that Queen Elizabeth, I. Martii anno regni ejus octavo, makes this House which was before a Hall, to be a College, and confirms the Statutes, and constitutes them a Body Corporate, and that one Sir William Petre, being willing to supply the wants of the College, makes addition to the Reve­nue, and to some defective Statutes, &c.

Then they find that before the time of the demise in the Decla­ration, viz. 16. Octob' Anno W. & Mar' 1. one James Colmer, A.M. was Convicted before the Rector, Sub-Rector, and five Seni­ors, of Incontinency, with one Ann Sparrow, and therefore was Expelled; that he Appealed to the Bishop of Exeter; that 21st of February, 1689. he made his Commission to Dr. Masters, which Commission, is found in haec verba, reciting that 'tis com­plained by C. that he was unjustly Expelled, and therefore ap­points Dr. Masters to hear and determine the same: that the Com­missary proceeds to the execution of that Commission and 22th Martii, he comes to the College and sits in the Chappel with a notary publick, and Colmer appears, and the Rector and the rest did not; then he Adjourns to the Hall, and Summons all the [Page 41]Parties to attend there, and there Dr. Bury made and exhibited a Protestation in Writing under their Hands, setting forth the Oath of a Fellow not to Appeal and Protest against his Authority, to examine it; thereupon, the Doctor proceeds and examines the Fact ex parte, and Reverses the Sentence, and Restores Colmer, viz. 25 Martij, because the Process was not transmitted.

Then they find that the 16th of May, the Bishop issued his Ci­tation to the Rector, or Sub-Rector, for a General Visitation, to be held the 16th of June, in the Chappel of the Colledge; and accordingly the 16th of June, the Bishop comes to the Colledge, and to the Door of the Chappel, which was shut up; and that the Porter was subject to the Government of the Rector, and bound to obey his Commands, in shutting or opening the Doors; and certain of the Scholars did then offer in area Collegij, a certain Writing under their Hands, protesting against the Visitation, as within time, by reason of Dr. Masters's Visitation: This is re­fused by the Bishop: The Bishop then Administred an Oath to Webber, of the Service of Citation; and then he called over the Names of the Rector and Scholars who appeared not; and not be­ing admitted into the Chappel, he departed.

Then upon the 21st of July, he Summons a Visitation upon the 24th of July, and the 23th of July, the Rector, &c. protested against the intended Visitation, insisting on their Statutes, which by Oath they are bound to observe, and this under their Common Seal. Then the Bishop upon the 24th of July, receives the Pro­testation, quatenus de Jure; then they departed, refusing to agree to his Visitation; Ten of the Fellows appeared, and submitted; the rest were pronounced Contumacious for not appearing: Then he Administred several Interrogatories, to discover Matter of Accusa­tion against the Rector and Fellows. In the Afternoon the Ab­sentees were called again, and declared in Contempt, and the Fel­lows Suspended, and Adjourned to the 25; and then Dr. Herne was deprived for having a Living inconsistent with his Fellow­ship; Dr. Bury is pronounced Contumacious, sed de poena in eum infligend' duxit deliberand': Then the 24th he calls for the Act, actum quendam coram eo decimo sexto die Julij ult' Elaps' die alias statut' pro visitatione hujus Collegij expedit' eundemque actum pro parte process' hujus negotij visitationis haberi decrevit. Then he Adjourns to the 26th, and then he deprives Dr. Bury for Contumacy, with the Consent of Four of the Seven Senior Fellows not Suspended; Twelve having been Suspended. And they find further, That the Four Fellows which Subscribed the Sentence of Deprivation, were not of the Senior Fellows, unless by the Deprivation of Dr. Herne, and the Suspension of George Vernon, Thomas Leth­bridge, Benjamin Archer, Samuel Adams, and Philip Thorne; all which six, half the number of the 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. 'twas 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 'twas 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 [Page 43]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. 'Tis 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 'twas 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: 'Twas 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 'twould 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 'twas 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 'twas owned, that if such Consent had been necessary, the Sentence had been a Nullity: But as this Statute is framed, 'twas 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 [Page 44]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 of a Scholar; and it is impossible to relate to the Rector, for then he must consent to his own Deprivation, for his particular Consent is mentioned and required, and that is not to be expected: And in this case, the Consent of the Senior Fellows, without that of the Rector, is not sufficient.

But then the subsequent words are, That if the Rector be depri­ved by the Bishop's Commissary, with the Consent of the Senior Fel­lows, he may appeal to the Bishop: 'Tis true, the Rector hath that liberty, if the Commissary do deprive him; but there are no words that do abridge the Bishop's own Power. The Commissa­ry's Power is restrained by those words, To have the Consent, &c. but the Bishop's own Power hath no such qualification.

It is objected, That 'tis unreasonable to imagine a greater Pow­er in the Visitor, over the Rector, then over the Scholars. But the Question is not, What was fit and reasonable for the Founder to have done; but to consider, upon perusal of the Statutes, what he hath done? Suppose he doth give such an absolute Authority, 'tis what he had over the thing granted; he might have reserved to himself a Power of Revocation, or what other Power he thought fit; and by the same reason he might give the like to a Visitor of his appointment; and having done so, it must be sup­posed that he had some Reasons for so doing. The Rector hath a Priviledge, not to be deprived without the benefit of Appeal, if 'twere by the Commissary: The Scholars have no Appeal. He might think fit to trust the Rector with his Visitor the Bishop, as supposing more care would be taken by him of the Head of the Colledge, then of Inferiour Members.

But the Query is not, What Reason induced the Founder to make those Appointments? He was Master of his own Charity, and might qualifie it as he pleased; and he hath given it under this qualification, That the Bishop is made Visitor, and might de­prive the Rector, as he hath done, according to the Statutes and Constitutions of this Colledge.

Then 2. the sufficiency of the Cause of this Deprivation is ne­ver to be called in question, nor any Inquiry to be made in West­minster-hall into the Reasons or Causes of such Deprivation, if the Sentence be given by him that is the proper Visitor, created so by the Founder, or by the Law.

'Twas urged, That there are in Law two sorts of Corporations aggregate, consisting of many Persons; such as are for Publick Government, and such as are for Private Charity. Those that are for Publick Government of a City, Town, Mystery, or the like, being of Publick Concern, are to be governed according to the Laws of the Land, and to be regulated and reformed by the Justice of Westminster-hall; of these there are no private Founders, and con­sequently no particular Visitors: There are no Patrons of these; they only subsist by virtue of the King's Letters Patents, or Cu­stom and Usage, which supposes Letters Patents, and are sup­ported and ruled by the Methods of Law: Therefore, if a Cor­poration be made for the Publick Government of a Town or Ci­ty, and there is no Provision in the Charter how the Succession shall be, the Law supplies the Defect of that Constitution, and says it shall be by Election, as Mayor, Aldermen, and Common-Council-men, and the like; and so is 1 Rolls Abridg. 513.

But private and particular Corporations for Charity, Founded and Endowed by private persons, are subject to the particular Go­vernment of those who Erect them: therefore, if there be no vi­sitor appointed; in all such cases of Elemosmary Corporations, the Law doth appoint the Founder and his Heirs to be Visitors: They are Patrons, and not to be guided by the common known Laws and Rules of the Kingdom; but such Corporations are as to their own Affairs to be governed by the particular Laws and constitutions assigned them by the Founder.

Though some have said, that the Common-Law doth not ap­point any Visitation or Visitor at all; yet 'tis plain, that it doth in defect of a particular appointment; it makes the Founder Vi­sitor; and it is not at his pleasure whether there shall be a Visitor or not, but if he is silent during his Life-time, the right will descend to his Heirs, and so is Yelv. & 2 Cro. where it is admit­ted on all hands, that the Founder is Patron, and as Patron, is Visitor, if no particular Visitor be assigned, 8. Edw. 7, 8. 8 Assis' 29.9 Hen. 6.33. 1 Inst. 96. so that Patronage and Visitati­on, are necessary consequents, one upon another; for this Visi­tatorial Power was not introduced by any Canons or Constituti­ons Ecclesiastical, it is an appointment of the Law; it ariseth from the property which the Founder had in the Lands assigned to support the Charity: And as he is the Author of the Charity, the Law gives him and his Heirs a Visitatorial Power, i.e. an Authority to inspect their Actions, and regulate their Behaviour as he pleaseth: For it is not fit, that the Members who are indowed, and that have the Charity bestowed upon them, should be left to them­selves, but they ought to pursue the intent and designs of him that bestowed it upon them.

Where the Poor are not incorporated, i.e. they who are to have the Charity, but Trustees are appointed, there is no Visita­torial Power, because the interest of the Revenue is not vested in them; but when they who are to enjoy the benefit of the Gift are incorporated, there to prevent all perverting of the Charity, there [Page 46]the Law doth not establish a Visitatorial Power: and it being a Creature of the Founders, 'tis reasonable that he and his Heirs should have that Power, unless it were devolved elsewhere.

'Twas further argued, that in our Old Books deprived by Pa­tron, and deprived by Visitor are all one, for this Authority to visit is a benefit that naturally springs out of the Foundation, and it was in his power, if he pleased, to transfer it to another, and where he hath done so, the other will have the same right and Au­thority as the Founder had.

There's no manner of difference between an Hospital and a College, except only in degree; An Hospital is for those that are poor and mean, or Sick, &c. a College is for another sort of per­sons, and to another intent, the former is to maintain and sup­port them, this is to Educate them in Learning, that have not o­therwise wherewithal to do it: But still it is much within the same reason of that of an Hospital; and if in an Hospital, the Ma­ster and Poor are incorporated; 'tis a College having a common Seal to act by, though it bears not that name, because it is of an inferiour degree; and in both cases there must be a Visitor, as both are Elemosinary.

A Visitor being then of necessity created by the Law, (as 8 Edw. 3.69, 70. Every Hospital is visitable, if lay by the Patron, if Spiritual by the Ordinary,) he is to Judge, and he may Expel; and as it is 8 Assis' 29, 30. he may deprive; the only Query is, if he were Visitor at this time, for it hath been and must be agreed on all hands, that Quatenus Visitor, he might deprive; if he be a Visitor as Ordinary, there lieth an Appeal from his deprivation, but if as Patron, there's none; and then that deprivation, whe­ther right or not, must stand.

As to the Objection, that 'tis not the Sentence of a Court, and therefore not Conclusive; 'tis not material whether it be a Court or not, but the Query is, if he had jurisdiction and conu­sance of the Person and thing, and if he had, then his sentence holds: and where the Founder hath not thought fit to direct an Appeal, no appeal lies, nay not to the Common-Law Courts: the Founder having put all under the Judgment of the Visitor, it must continue so: He might have ordered it, that the Rector should continue only during the pleasure of the Visitor, but now he hath left it to his wisdom according to the Sta­tutes.

He is a Judge not only in particular by appointment, but as he is Constituted a Visitor in general; then in pleading of a Sentence of deprivation, there is no necessity of shewing the cause, the cause is not traversable even in a Visitation, so is Rastal. 1.11 Hen. 7.27. 7 Rep. Kenne's Case. 9 Edw. 4.24.

Suppose this Rectory had been a sole Corporation, and not part of a Corporation aggregate, as it is, Consisting of Rector and Scholars, and Dr. Bury had brought an assize, and this de­privation had been pleaded, it had been good to have said that the Visitor certis de Causis ipsum adinde moventibus, had deprived [Page 47]him: every thing that is traversable must be expressed with cer­tainty, but the cause need not be so in this Case.

Now 'tis strange, that pleading a Sentence without a Cause, should be good, and the finding of a Sentence in like manner in a special verdict should not be good: If in Pleading it be not traversable, 'tis the strongest Argument, that the Cause is not to be inquired into; the having no Appeal doth not lessen the validity of the Sentence, it doth only shew the Rector's place, not to be so certain and durable, as in other cases they are, where Appeals are allowed.

The Case of Caudrys, in the High Commission Court, is as strong; a Sentence of deprivation, no Appeals, and the Sentence found and no cause shewn, yet held good: 'tis no Answer to say, that that was by the Ecclesiastical Law, how is it the Ecclesiastical Law, that a Man shall be concluded by one Sentence without Appeal; no, it was, because 'twas by a Court that had Jur' and the Sen­tence was not the weaker, or the cause of it more inquirable, be­cause there's no Appeal.

'Twas by the Ecclesiastical Constitution, that the Commissio­ners had that Power, but that was established by the Law of the Land, and so is the Visitatorial Power, the one Authority is as much derived from the Law as the other.

Bird and Smith's Case in Moore's Rep. deprivation for not con­forming to the Canons; held good in like manner.

As to the Case of Coueney in Dyer. 209. and that in Bagges's Case, 11 Rep. 99. they are the same as to this matter, though in Two Books, an assize because no Appeal; he quotes Books for it, but upon a perusal they will not warrant the distinction, for the party is as much concluded in the one Case as in the other: 'tis reasonable to suspect that Case not to be Law, because that is impracticable, which it is brought to prove. The Head of a College cannot maintain an Assize for his Office of Headship: He hath not such an Estate as will maintain that writ, therefore to give that instance against us, is hard, the Rector hath no such sole Sezin, the whole body of the College have an interest there­in: He hath no Title to the Money in his own Right, till by con­sent they are distributed, and after such distribution, 'tis not the Rector's Money, but Dr. Bury's; He is the only visible head of the Body in deed, but has no single right.

In Appleford's Case, the like Argument was drawn from this Case for a Mandamus, and insisted that he might have an assize, but said by the Lord Hales, that that was impossible: and in truth, there's no difference between this Case and that of a Man­damus, there was a return that he was removed, pro crimine en­ormi, and Appealed to the Bishop of Winton, who confirmed the amotion, and the particular cause was not at all returned, and held good, because there was a local Visitor, who had given a Sentence, and all parties were concluded by it, the same being done by the Power of that Government, which the Founder had thought sit to put them under.

Now 'twas argued from hence, That this was an express Case, If the Cause of the Deprivation be examinable in the Courts of Common Law, why not upon a Mandamus as well as in an Eject­ment. The Lord Hales in that Case of Appleford, took it for clear Law, That the Sentence was as binding as a Judgment in an As­size: He is made a Judge, and his Person particularly designed by the Founder, but he hath his Authority from the Law; and since the Founder hath trusted the Matter to his Discretion, 'tis not to be suspected that he hath done, or will do otherwise than right.

Then in the next place 'twas argued, That there doth not ap­pear any Injustice in the Sentence, and consequently it ought to be presumed Just; Credence is to be given to a Person that exer­ciseth Judicial Power, if he keep within his Jurisdiction. The Law hath respect not only to Courts of Record, and Judicial Pro­ceedings in them; but even to all other Proceedings, where the Person that gives his Judgment or Sentence, hath a Judicial Au­thority; and here's no Fault found in the Sentence; the Jury have not so much as found the Matter and Ground of it to be untrue in Fact, or insufficient in Law.

Then 'twas urg'd, That the Cause of Deprivation here was just, it being for Contumacy. If the Bishop had power to vi­sit in June, as he had, and was hindred by their shutting the Doors, whereupon he went away without doing any thing, and came again in July, when he held his Visitation, and they behaved themselves Contumaciously, and refused to submit to his Authority; this was contra officii sui debitum; 'tis reason­able that both Head and Members should submit to the Visitor; Contumacy is a good Cause of Deprivation, and upon good rea­son, because it hinders an Inquiry into all other Causes: 'Twas held so in Bird and Smith's Case, and in Allen and Nash's Case; quia fuit refractarius: Now tho' Contumacy be not one of the Causes mentioned in the Statutes, yet 'twas certainly contrary to their Duty; turning their Backs upon the Visitor, not appearing upon Summons, refusing to be examined, was an Offence, and contrary to what the Statutes require. He is to inspect the state of the Colledge, and each Member's particular behaviour; and now when the Visitor comes to make such an Inquisition, and the Head or the Members withdraw themselves, and will not appear to be examined, if this be not a good Cause of Deprivation, nothing can be, for that nothing else can ever be inquired into.

As for that Statute which refers to the Causes for which a Rector may be deprived, it doth not relate to a Deprivation in a Visita­tion; but shews the manner, how the Colledge is to proceed, if he be guilty of such Offences; they may complain at any time to the Visitor, if he wasts the Revenues, or behave himself scanda­lously, and upon request will not resign, and they may Article against him out of a Visitation; but when he comes to execute his Power in his quinquennial Visitation, he is not confined to pro­ceed [Page 49]only upon the Information of the Fellows, but is to inquire into all the Affairs of the Colledge, and may proceed to depriva­tion as he sees Cause. Now Contumacy is a causa of a Forfeiture of his Office, which is subject to the power of the Visitor by the original Rules of the Foundation; and to evade or contumaci­ously to refuse or deny a Submission to that Power, is an Offence against the Duty of his Place, and consequently a just Cause of Deprivation; so that upon the whole Matter, 'twas inferred and urged, that the Bishop hath a Visitatorial Power vested in him to deprive the Rector without consent of the four Senior Fellows. And 2. that the Justice of the Sentence is not examinable in West­minster-hall. And 3. that if it were, and the Cause necessary to be shewn, here was a good one, an affronting the very Power of Visiting, and fetting up for Independency, contrary to the Will of the Founder; and therefore it was prayed that the Judgment should be reversed.

On the other side, 'twas argued by the Counsel with the Judg­ment, That this Sentence was void; that 'twas a meer Nullity; that this proceeding had no Authority to warrant it; and that it being done without Authority, 'tis as if done by a meer Stranger; and whether it be such an Act, or not, is examinable at Law; for that the Power of a Visitor must be considered, as a meer Au­thority or a Trust, and it is one, or rather both, and then either way 'tis examinable; for every Authority or Trust hath, or ought to have, some Foundation to warrant it; and if that Foundation which warrants it, hath limited any Rules or Directions, by which it is to be executed, then those Directions ought to be pursued; and if they are not, 'tis no Execution of the Authority given, or Trust reposed; and if not, 'tis a void Act, a meer Nullity, and consequently 'tis that of which every Man may take notice and ad­vantage.

Then 'twas said, That it must be agreed that of a void thing all Persons may take advantage, and contest it in a Collateral Action, and that altho' it have the form and semblance of a Judicial Pro­ceeding: and for this was cited the Case of the Marshalsea's, 10 Rep. 76. as a full Authority; the Resolution was, That when a Court hath no Jurisdiction of a Cause, there all the proceeding is coram non judice, and Actions lye against any Person pretend­ing to do an Act by colour of such Precept or Process, without any regard to its being a Precept or Process; and therefore the Rule, qui jussu judicis aliquid fecerit, non videtur dolo malo fecisse, quia parere necesse est, will not hold, where there is no judex, for 'tis not of necessity to obey him who is not Judge of the Cause; and therefore the Rule on the other side is true, judicium a non suo judice datum, nullius est momenti; and so was it held in the Case of Bowser and Collins, 22 Edw. 4.33. per Pigot, and 19 Edw. 4.8. And therefore if the Court of Common Bench held Plea of an Ap­peal of Felony, 'tis all void; but it must be owned, that the meer erroneous procedure of a Court which hath a General Juris­diction [Page 50]of the Subject Matter is not examinable in a Collateral A­ction, whether upon true Grounds, or not; and yet if it be a limited Jurisdiction, and those limits are not observed, even that is coram non judice; and holds with respect to Courts held by Authority of Law, which are much stronger then the Cases of Power created or given by a private Person. A Sheriff is bound by Law to hold his turn within a Month after Michaelmas, and he holds it after the Month, and takes a Presentment at that time, if that be removed into the King's Bench, the Party shall not an­swer it, but be discharged, because the Presentment was void, & coram non judice; for that the Sheriff at that time had no Autho­rity; and yet in that Case his Authority and Jurisdiction extend­ed to the Person and Thing: The same Law for a Leet, unless Custom warrants the contrary, and then that Custom must be pur­sued.

The Commissioners of Sewers have a limited Authority; and if the number of Persons, or other Requisites mentioned in their Commission, be not pursued, what they do which exceeds it, is void; and yet they have a kind of Legislative Authority; so is it in Sir Henry Mildmay's Case, 2 Cro. 336. and there they had an Authority both of Thing and Person, but did not observe the Rules prescribed in the Gift of that Authority, according to the 23 Hen. 8. cap. 5. and no reason could, or can be given for that Resolution, but that it was a particular limited Authority: And then, to apply this to the present Case, the Sentence in question can no more aggrieve the Defendant, then an Order pronounced or made by a non Judex, if it be not agreeable to the Power given by the Statutes; and this appears further from Davis's Rep. 46. where the same Distinction is allowed.

Nay, in some Cases, the Award of a wrong Process is void; as if by a Steward of a Mannor Court, that a Capias should issue, where the same doth not lye, but only an Attachment, Turville and Tipper's Case, Latch. 223. A Court of Pypowders hath Juris­diction of an Action of the Case; yet if it holds Plea of Case for Slander, 'tis all void, tho' the words were spoken within the Boundaries of the Fair, because the Jurisdiction is limited; so that if the Thing, the Time, the Person, or the Process, be not regarded according to the Authority given, 'tis all void, and an Advantage may be taken of it by any Body, where the Plaintiff Claims or makes his Demand by colour of such Act.

'Twas further argued, That the Reason given in that Case of Latch, is, because the Custom which gave him his Authority, gave him notice that such Process did not lye; and if any Man hath by our Law any Estate, Right, or Priviledge, by any par­ticular means, he is bound to take notice of all the Conditions and Qualifications annexed thereto: And the Reason is just, be­cause the same means, by which he had notice of the Benefit, gives him notice of the restrictive Limitation and Penalty, and so was it held in the Case of Fry and Porter.

By our Law no Benefit can accrue to a Man by a Judgment gi­ven [Page 51]on a Thing arising extra potestatem Curiae, in case of a particu­lar and limited Jurisdiction; as in the Case of Kingston upon Hull, March 8. which held Plea of Debt upon a Bond made extra Jur', &c. and a Jud', and Capias executed, and an Escape; and no Action lay for the Escape, because all was void, and coram non Judice: In the same Book, March. 117, 118. Dye and Olive's Case, in False Imprisonment, Plea that he was Serjeant at Mace belonging to a Court of Record, and that a Warrant was directed to him to Arrest the Plaintiff pro quodam Contemptu, and held not good, be­cause not shewn, in what Action, and how within the Jurisdicti­on; and if not within it, 'twas coram non judice, and void, ar­gued by Rolls and Maynard.

Then 'twas argued, That this was a limited qualified Power; that the Visitor was a Creature of the Founders; and if it had been the Heir of the Founder, he had been as much bound and restrained by the Statutes, as a Stranger: and tho' the Law should be agreed to be, as is pretended, that it appoints a Visitor, yet still (whether he be the Heir or Nominee of the Founder) he is an Officer only within the Limits and Rules of the Foundation, and the Statutes made thereupon: As he hath a Visitatorial Pow­er only over this Colledge, so he hath it only after the manner in which 'tis given to him.

If the Founder had made no particular Visitor, but yet had ap­pointed that the same should be visitable at such a time, and in such a form, he himself had been bound by these Rules; and if he would have been so confined, with much more, or at least with the same Reason, ought his Nominee; for cujus est dare, ejus est disponere; and every Argument which hath been urged for the Rector's being subject to the Rules of the Foundation, may likewise be applied to that of the Visitor: He that made the Visitor, may restrain, shape, and modifie the Power which he gives him: He might have made him Visitor only once in his Life, or only upon Request, and have left all other Jurisdiction to the Rector and Fellows.

But further, here he is found to be Visitor only secundum for­mam statut' & vigore statut', and to execute those Statutes; and that which makes him a Visitor, makes him such thus and thus qualified, and no otherwise: whatsoever Power or Authority the Name or Office of a Visitor may import ex vi termini, no Man can say but this Visitor is controuled by the Statutes, which make him so; now had there been no Statutes, he had never been Visitor; then these Statutes making him a Visitor, upon particu­lar Terms and Conditions, Times and Occasions; extra these Terms and Conditions he is no Visitor at all; this seems plain and natu­ral: So that if he exceeds the Bounds prescribed to him as Visitor, he doth not act as Visitor; for all Powers, Authorities, and Ju­risdictions, especially such as are created by private Persons, must be executed according to the express Institution, or plain mean­ing of the Party that created them, and according to the Circum­stances, with which he hath circumscrib'd them: So is the Rule [Page 52]in Berwick's Case, 5 Rep. 94. and 1 Inst. 113. and 258. An Ex­ecutor is an Officer or Person instrusted, which is taken notice of by the Law, yet in his Creation he may be limited quoad the E­state in one Country, or quoad one Particular, and he can't in­termeddle any further; but Administration shall be granted as to the rest.

Then 'tis observable, That this Statute Visitor is not a Court of Record, nor any Court at all, but rather like an Arbitrator under certain Directions, he can neither meddle at another Time, or with other Matters, or in other Manner, then what is prescribed. But admitting it a sort of Judicature, here's no Appeal or Writ of Error, or Prohibition or Mandamus lies; nay, the Visitor himself cannot relieve against his own Sentence, or restore the Party deprived the next day; but the Place being vacant, a right of Election accrues to the Fellows; 'tis therefore unreasonable to suppose him not restrained, or that his Acts, if exceeding the Li­mits and Rules set him, shall be conclusive and binding.

This is like a Lay-Hospital, 'tis not a Religious Body, tho' some call it mixt; and in case of Temporal Lay-Offices, there must be some Remedy at Law, as is 13 Rep. 70. so is Dyer 209. and 3 Inst. 340. Where no Appeal is allowed, another Examination must be admitted; and thus seems the 8 Assis. pl. 29. tho' it hath been quoted on the other side; If the Warden of an Hospital be irregularly deprived, he shall have his Remedy at Law; and 13 Assis. 2. to the same effect: Bagges's Case, 11 Rep. repeats the same Case, which shews Coke's Opinion to concur with it; and tho' an Assize doth not properly lye, yet the meaning is, he shall have Relief, i. e. such Suit at Law as is proper to his Case: The same Distinction is allowed in Dr. Sutton's Case, Latch. 229. And that a Remedy is given by the Law in this Case of a Temporal Property, seems to be plainly affirmed in the Statute of 24 Hen. 8. cap. 12. And further, Tho' strictly and properly it were not of Common Law connusance, yet it falling incidently to be a Que­stion upon trial of a Title, the Court before whom that Suit de­pends, must examine that incident; as in case of an Issue, law­fully joyned in Marriage or not, the Trial shall be by Certificate of the Ordinary; but if it be a Question upon the Trial of a Title to Land, the Matter shall be tried and judged without Cer­tificate.

The wisdom of our Law hath been such, as very rarely to trust any of the Courts of Justice with the final determination of mat­ters of Law in the first Instance; and 'twould be strange that this Case of a Visitor should stand single by it self. Besides to prevent a failure of Justice, the Law doth of necessity admit of several other provisions and methods of Examination or Tryal, than what the subject matter or person would properly in their own nature require, especially in point of remedy and relief, as appears in Dormer's Case, 5 Rep. 40. and 1 Inst. 54. 2 Roll's A­bridg. 587. now here is no other remedy, nor other way of trial, [Page 53]for Deprivation is not triable by Certificate, but only in case of an Ecclesiastical 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 'twas, debito modo privatus, which implies, all due requisites; but here the whole is disclosed, upon a speci­al Verdict; 'tis 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 'twas 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, 'tis 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; 'tis 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 'tis limitted to once in five Years, and his Acts to be with others consent, 'tis 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 [Page 54]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 'twas objected, that strong Wines were within their Jurisdiction, and that 'twas 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 'tis but once, and if with another, as ne Se­mel, 'tis 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 'tis a quinquennial one of it self, or it is a Commencement of one, and either one way or o­ther, it makes the Deprivation void: 'tis afterwards entred as a Visitatorial Act; Eundem actum pro parte hujusmodi negotii Visita­tionis haberi decrevit, and then he adjourns; 'tis 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, 'tis longer than the time: There needed no formal adjournment, for that he is Autho­rized to proceed in a Summary way; 'tis 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 'tis 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 twas 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, 'tis 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 'tis 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, 'tis so; a Suspension in this Case is on­ly a disabling them from taking the Profits during the time it continues: And 'tis 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 'tis 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 'twas 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, 'twas 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 [Page 57]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.

'Twas 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 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. 'Tis 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. 'twas 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 [Page 59]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, 'twas 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 Ʋsau 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, 'tis upon the Sentence given by the Constable and Marshal in the Suit before them concerning a Coat of Arms, Rot. Claus. 12 Rich. 2. m. 4. Appeal by Bond vers. Singleton, 'tis in a Cause of Arms in our Court before our Constable and Marshal, wherein Sentence was given by them, 1 pars Pat. 17 Rich. 2. m. 12. Thus it appears by a Commission for the Execution of the Office of Constable of England, Committimus vobis officium hujusmodi Constabularii ad querelam Thome Moor in hac parte una cum Ed­mundo de Mortimore Mareschallo Anglie audiendum; secunda pars Patent' 48 Edw. 3. m. 20. in dorso. As also by a Claim at [Page 60]the Coronation of H. 5. before Beauchamp Earl of Warwick then Lord Steward. John Mowbray Earl Marshal, Son to the then Duke of Norfolk, claimed under a Grant in 20th of Rich. 2. of the Of­fice of Earl Marshal of England, to hold Court with the Consta­ble, and to hold Pleas before them: and Copies of these Pre­cedents were said to have been ready in Court.

Further, to prove the joynt Authority, were cited several of our Old Books, 48 Edw. 3. fol. 3. in a Case of Debt upon an Indenture by which P. was retained by the Defendant, with two Squires of Arms for the War in France: Belknapp said, of such Matter this Court cannot have conusance, but 'tis triable before the Constable and Marshal. In the Case of Pountney and Bour­ney 13 Hen. 4.4. the Court of King's Bench call it the Court of the Constable and Marshal: And in 37 Hen. 6.3. upon another occasion, Prisot said, this Matter belongs to the Constable and Marshal: And Coke 4 Inst. 123. says that they are both Judges of the Court: and that the Constable sometimes gave Sentence, is no Argument that the Marshal was no Judge with him; it only proves him the Chief, who in most Courts doth usually give the Rule: Nor is the Earl Marshal's receiving Writs from the Con­stable to execute his Commands, any Argument that he sits there only as a Ministerial Officer, and not as a Judge; for he may be both; as in many Corporations, Mayors are Judges of the Court, and yet have the Custody of their Goals too, and so have the Sheriffs of London their Compters, tho' they strictly are Judges of their several Courts.

2. During the Vacancy of the Earl Marshal's Office, the Constable alone had the Judicature; as in 11 Hen. 7. on Holy­rood-day, the Earl of Darby being then Constable of England, sate and gave Judgment alone in a Cause between Sir Thomas Ashton and Sir Piers Leigh upon a Coat of Arms: but this needs no Proof, since 'tis contended on the other side, that the Court doth belong only to the Constable.

3. 'Twas argued, that the Earl Marshal hath set alone and given Judgment, and to prove that, it was said, this Court was held when there was no Constable, before Thomas Howard, Duke of Norfolk, Lord High Treasurer and Earl Marshal of England, who Died 16 Hen. VIII. and next after him, before Charles Brandon, Duke of Suffolk, then Earl Marshal, who Died 37 Hen. VIII. af­ter him, the Court was held and Sentences given by Thomas Ho­ward, Duke of Norfolk, who Died in 1512. and after him, in the 30 Eliz. the Earl of Essex sat as Earl Marshal, and heard and determined Causes judicially, and the chief Judge sat then as Assistant with him in Court, and then after the Death of the Earl of Essex, it was in Commission to my Lord Treasurer Burleigh, and others, and then the great Oase of Sir F. Mitchell, was heard and determined, at which, several Judges assisted, and the Sen­tence of degradation was executed upon him, 26. April, 1621. [Page 61]and then was Cited the Case of Pool and Redhead 12 Jac. 1.1 Roll's Rep. 87. where 'twas held, that the proper remedy for Fees of Knighthood was to sue to the Earl Marshal; and Coke says in the same Case, the Common-Law does not give remedy for pre­cedency, but it belongs to the Earl Marshal: And since that in Parker's Case, which was 20 Car. II. Syd. 353. the Earl Marshal was agreed to have the absolute determination of matters of Ho­nour in the Court of Chivalry, as much as the Chancellor hath in matters of Equity: And the Error on the other side, was occa­sioned by not distinguishing between the Ancient Jurisdiction of this great Court at the Common-Law, and the Jurisdiction given to the Constable and Marshal under those names by Statute: for the latter cannot be executed by one alone; and that distinction answers the Authority in 1 Inst. 74. which grounded the mistake, that there is no Court of Chivalry, because there's no Constable, whereas, the reason why in Sir Francis Drake's Case, the not con­stituting of a Constable silenced the Appeal, was from the 1 Hen. IV. Cap. 14. which orders all Appeals of Murder committed be­yond Sea to be before the Constable and Marshal by name: But the Ancient Jurisdiction of this Court by prescription, wherein both the Constable and Marshal were Judges severally or together, and which each of them did and could hold alone, remains still as much in the Earl Marshal alone, as it ever was in him and the Constable.

Then it was argued that no Prohibition lay to this Court, be­cause none had ever been granted, and yet greater occasions then now can be pretended, by reason of the large Jurisdiction, which this Court did in Ancient time exercise: many Petitions were frequently preferred in Parliament, Complaining of the In­croachments of this Court in Edw. I. Edw. III. Rich. II. Hen. IV. and Hen. VIth's time, as appears in 4 Inst. 125. 2 Hen. IV. num. 79. and 99. 1 Roll's Abridg. 527. and yet no Prohibition gran­ted or moved for; which, according to Littleton's Text is a ve­ry strong Argument, that it doth not lie.

The Statute of 13 Rich. II. 2. is an Argument against it, be­cause after several Complaints of the Incroachments of this Court, another remedy is given, which had been needless, if this had been legal: nay, it shews the Opinion of the Parliament, that there was no other way of relief: and soon after the making of this Statute, in the same Reign two Privy Seals were sued upon it: in the Case of Poultney and Bourney, 13 Hen. IV. 4. 5.

Besides, this might be grounded on the Antiquity and greatness of this Court: for as to the subject matter of it, 'tis by Prescrip­tion a Court for determining matters of Honour, to preserve the distinction of degrees and quality, of which no other Courts have Jurisdiction; and the right and property in Honours and Arms is as necessary to be preserved in a Civil Government, as that in Lands or Goods. Then 'twas urged that this Court hath Jurisdiction even of Capital Offences, its extent is large, 'tis throughout the Realm, even in Counties Palatine, even beyond [Page 62]the Seas; its manner of proceeding is different, in a Summary way by Petition, its trial of Fact may be by Duel as is 4 Inst. 125. though the Statutes of Hen. VIII. impower Commissions for trial of Treasons Committed beyond the Seas, yet this Court doth and may still take Conusance of such Causes, 4 Inst. 124. Its Sen­tences are only reversable by and upon Appeal to the King, no Writ of Error or false Judgment lies upon any of them, which shews the greatness of the Court, and the difference of its Juris­diction from other Courts; which may be some of thereasons, why no Prohibition was ever granted to it, and why the Parlia­ment of Rich. II. gave the Remedy of a Privy Seal: wherefore it was prayed that the Judgment should be Reversed.

On the other side, it was argued by the Council, in behalf of the Plaintiff in the Original Action, that this Judgment ought to be affirmed, and it was after this manner, there seem three Que­ries in the Case; 1. If any Prohibition lies to that Court; 2. If any Cause here for a Prohibition; and, 3. If there be any such Court as that before the Earl Marshal; but another doubt was raised, whe­ther any of these Questions could be such upon this plea, which is concluded to the Jurisdiction; for that seems to make only one doubt; whether the Court of Exchequer could hold Plea of an Action for proceeding contrary to a Prohibition already gran­ted; but this was waved, and then it was argued,

1. That a Prohibition doth lie to this Court of Chivalry, in case it exceeds the Jurisdiction proper to it; and it was agreed, that the Office of Constable is Ancient, and by Cambden is held to have been in Ure in this Kingdom, in the Saxon's time, though the Office of Marshal is but of a puisne date: but however Great and Noble the Office is, however large and Extensive the Juris­diction is, yet 'tis but limitted, and Coke in 4 Inst. 123. says that 'tis declared so, by the Statute of Rich. II. where 'tis 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 'tis 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 'tis 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 'tis 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.

'Tis 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, 'tis 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 'tis 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 'tis 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. 'twas 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 'twas 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: [Page 64]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; 'tis so in case of a limited Power at the Common Law, but much more so upon a Statute.

Besides, the latter Statute which gives a Privy Seal, doth not Repeal or alter the Law then in being, 'tis an Affirmative Law, and that seldom or never works any change or alteration in what was before, any otherwise then by Addition or Confirmation; and in truth this is only a further remedy, and is far from declaring a Prohibition not to lie: the meaning might be to give a Privy Seal immediately, even in vacation time; the preamble complains so much of the Grievances, that it cannot be supposed to Design any thing in favour of them, or to prevent the restraint.

Suppose between the 8 and the 15 Rich. II. an excess of Juris­diction had been usurped as in this Case, will any Man say, that a Prohibition would not then have lain; and if it would, can any Man say, that the Statute pleaded, doth take it away, or Prohibit such Writ of Prohibition: And the 11 Hen. IV. 24. ordains that all the Statutes concerning the Court of Constable and Marshal, shall be duly observed; and if so, the 8 Rich. II. as well as the 15 Rich. II. are within that ordinance; and if so, a Prohibition lies as well as a Privy Seal; and both are little enough to keep that Court within its due bounds and limits.

2. It was argued, That the proceeding upon these Articles, was an intermedling with a subject matter properly determinable at Com­mon-Law; here's no contract or deed of Arms, no Mis-behavi­our in War, nothing of that nature, which their own Statute says belongs to them: Rushworth's II. Vol. 1054. he frequented the Court for four years together, he observed no Cases there but for Words, and one or two as Delaware's Case, about abusing an Honourable Family, by assuming to be a branch thereof; here's no such thing, but express Articles for exercising of a lawful Trade; 'tis not causa armorum, it doth neither concern Warlike mat­ters, nor Honour; a Funeral Ceremony can never be within their Power; this is a plain Accusation for a wrong to one of their Officers; the Articles charge, that Sir Henry S. George by his Office within his Province, hath the ordering of these matters, and the party hath medled therein without his License; he says, 'tis law­ful, and the exercise of a lawful employment; they say, 'tis o­therwise, because it belongs to another Man's Office; then 'twas [Page 65]admitted by the Council for the present to be so, that Sir Henry was an Officer by Letters Patents under the Great Seal of England, (which by the way, makes the Office and rights of it to be of Common-Law Conusance) and the Patent is set forth at large in Prinne, on 4 Inst. 64, 65. and that the King at Arms hath such a right, yet if any Man intermeddles or incroaches upon that Of­fice; 'tis not a breach of the rules of Honour, and not relating to Arms, but a plain injury at Common-Law, and an Action lies for it, as it doth for the disturbance of any other Office or Fran­chise.

In 4 Inst. 126. 'tis said, that they do upon request Marshal Fu­nerals, but supposing they alone ought to do it, then an Action lies: This is merely a question, whether the Letters Patents do carry such a sole priviledge, suppose nul tiel record be Pleaded to them, when Pleaded or Inrolled, and without producing them, suppose non concessit Pleaded to them when produced, how shall these issues be tried: Suppose they awarded a satisfaction to be made to Sir H. S. by the gift of a Summ of Money; and he should afterwards bring an Action at Law for the same Cause, will the proceeding in the Court of the Earl Marshal be a barr: the Fact alledged in these Articles comes within none of those particulars supposed to be belonging to this Court, in 1 Inst. 391.

It matters not, whether these were publick Funerals as was que­stioned in Parker's Case, Sid. 352. and in 2 Keble. 316.322. but the Query here is, if this be a point of Honour, or whether it be not about the right of an Office; and if it be the latter, they have no Power to determine it.

The Heralds are Officers attendant upon that Court, but it doth not follow, that that Court can judge of the nature or extent va­lidity or operation of their Letters Patents; no more than the Court Christian can try the right or Freehold of a Chancellors or Registers Office. The Earl Marshal cannot License the doing this in prejudice of the Heralds, or acquit the party if does it, for he still stands liable at Law; the Herald hath a Freehold in it, and may bring his Action notwithstanding.

Then, 3. 'Twas argued, that admitting that no Prohibition did lie to the Court of Honour, or that there was no cause for such Prohibition, yet it ought to be granted to this pretended Court, which is not within their Statute. The true Court is be­fore Constable and Marshal, it is a Court by Prescription, and cannot be altered but by Act of Parliament: All our Books which describe the Court, mention it to be before both, 4 Inst. 125. Crompt. Jurisdiction, 82. 1 Inst. 74. Stamford. 65. The Consta­ble is the Chief, and so are the Old Books, and 37 Hen. 6.20. expresly before the Constable and Marshal. The Statutes which mention the Court, do all take notice of it, as held before both: the 8 Rich. 2. and that which they Plead, do describe it so: and [Page 66]the 1 Hen. 4. Cap. 14. the 13 Hen. 4.4.5. all Attainders are Plea­ded to be before both.

Cambden (who was an Herald) in his Commentary de Etymolo­gio, antiquitate & officio Comitis Mareschalli Angliae, fol. 87. 'tis pub­lished at the end of his Latin Epistles, which are in 4to, Printed for Chiswell, 1691. he endeavours to advance the Office of Earl Marshal, and searches for the Etymology, and after all, makes him but an Harbinger, and tells us when the Title Mareschallus Angliae was first used, and how it hath been enjoyed, and by whom, and of what Families, and afterwards 91. lessens his Character much, and derives the Office of Marshal of England from that of Marshal of the Houshold, which he describes to dis­advantage, the same is likewise in Fleta. lib. 2. cap. 5.

But this is observable, which Cambden says, that the greatest in­crease of the Authority of this Office hath been, since there were no Constables, for the Kings since that time have referred many things to them, which in former times were proper for the Con­stable; neither had the Marshal any precedency in respect of his place, until King Hen. 8. Anno 31. by Parliament Assigned him place next to the Lord Constable and before the Lord Admiral: all which, shews that the Earl Marshal never had that Authority time out of mind, to hold this Court before himself alone, as is pretended, during the vacancy of the Office of Constable.

In November, 1640. 'twas Voted by the House of Commons, upon a report from a Committee of some 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, 'twas 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 'tis 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 [Page 67] 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 & Ʋx' 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 'twas 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; [Page 68]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. 'Tis 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, 'twas 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 Disor­der, and most Proceedings informal and in the English Tongue, in such a mean Court where are few Precedents to guide them: where the Parties themselves are not empowered to draw up their own Proceedings as here above; but the whole is left to the Steward, who is a Stranger to the Person concerned; and there­fore [Page 69]'tis hard and unreasonable, that Mens Purchases should be prejudiced by the Ignorance, Unskilfulness, or Dishonesty of a Steward or his Clerks; that there is scarce one Customary Reco­very in England, which is exactly agreeable to the Rules of the Common Law; that the questioning of this, may in consequence endanger multitudes of Titles which have been honestly purcha­sed, especially since there can be no aid from the Statutes of Jeo­failes, for they do not extend to Courts Baron. 'Twas further urged, That there was no Precedent to enforce Lords of Mannors to do as this Bill desired; that the Lords of Mannors are the ul­timate Judges of the Regularity or Errours in such Proceed­ings; that there's no Equity in the Prayer of this Plaintiff; that if the Lord had received such Petition, and were about to proceed to the Reversal of such Recovery, Equity ought then to interpose and quiet the Possession under those Recoveries: That Chancery ought rather to supply a Defect in a Common Conveyance (if a­ny shall happen) and decree the Execution of what each Party meant and intended by it, much rather, than to assist the annul­ling of a Solemn Agreement, executed according to Usage, tho' not strictly conformable to the Rules of Law. For which Rea­sons it was prayed that that Appeal might be dismissed, and the Dismission below confirmed, and 'was accordingly adjudged so.

The Countess of Radnor, versus Vandebendy & al.

APpeal from a Decree of Dismission in Chancery, the Case was to this effect; The Earl of Warwick, upon Marriage of his Son, settles part of his Estate upon his Lady for a Jointure, and after failure of Issue Male, limits a Term for 99 years to Trustees to be disposed of by the Earl, either by Deed or Will: And for want of such Appointment, then in trust for the next in Remain­der, and then limited the whole Estate in such manner, as that a third part of a Moiety thereof came to the Lord Bodmyn (the Appellants late Husband) in Tail general, with the Reversion in Fee to the Earl and his Heirs. The Son died without Issue, the Earl by his Will appoints the Lands to his Countess for so many years of the Term as she should live, and to her Executors for one year after her Death, and charges the Term with several Annui­ties, some of which remain in being. The Respondent's Father purchased part of these Lands from the Lord Bodmyn after his Mar­riage, and had the Term assigned to him. The Lord Bodmyn dyes, the Appellant brings her Writ of Dower in C. B. the Re­spondent pleads the Term for 99 years; and she Exhibits her [Page 70]Bill, praying that she may, after the discharge of the Earls Incum­brances, have the benefit of the Trust as to a third of the Profits of this Term; and upon hearing the Cause, the Lord Chancellor saw no cause to give Relief, but dismissed her Bill. There were many Particulars in the Case, and many Proceedings before, both in Law and Equity; but this was the whole Case as to the general Question, Whether a Tenant in Dower shall have the benefit of the Trust of a Term which is ordered to attend the Inheritance, against a Purchaser after the Marriage? The Lord Chancellor Jeffryes had been of opinion with the Appellant, but the Cause coming to be heard again, a Dismission was decreed, and now it was argued against the Decree on behalf of the Appellant, that E­quity did entitle her to the Thirds of this Term; that a Tenant by the Curtesie is intitled to it, and br the same reason a Tenant in Dower; that the Term created by the Settlement, was to at­tend all the Estates limited by that Settlement, and in Trust for such Persons as should claim under it, which the Appellant doth as well as the Respondents; that it was in consequence to attend all the particular Estates carved or derived from the others; the Term was never in its creation designed for this purpose, to pre­vent or protect against Dower; that in the Case of Snell and Clay, the Tenant in Dower had it in Chancery against the Heir at Law, and that this was the same Case, a Purchaser with notice of that Incumbrance of Dower, the Vendor being then married; this was an Estate of which the Husband was full Owner, and received the whole Profits; that in proportion, 'tis as much a Trust for her, for her Thirds during Life, as it is a Trust for the Respondents for the Inheritance; she claims under her Husband who had the benefit of the whole Trust: If there be a Mortgage by an Ance­cestor upon the whole Eqinty will permit her to redeem, paying her proportion, according to the value of her Thirds for Life; and the same reason holds in this Case; and there's no Precedent in Equity to the contrary: And many Precedents in favour of Te­nant in Dower were cited, and much Reason well urged from pa­rallel Cases, to entitle the Lady to her proportion of the Trust of this Term.

On the other side, 'Twas said that Dower is an Interest or Right at the Common Law only; that no Title can be maintained to have Dower, but where the Common Law gives it, and that is only to have the Thirds of that which the Husband was seized of; and if a Term were in being, no Feme was ever let in but after the determination of that Term; that this is the first pretence set up for a Dower in Equity; the Right is only to the Thirds of the Rent reserved upon any Term; and 'tis a new thing to affirm, that there shall be one sort of Dower at Law, and another in Chancery; that 'tis, and always hath been, the common received Opinion of Westminster-hall, and of all Conveyancers, that a Term or Statute prevents Dower, that if a Purchaser can procure it, the same becomes his Defence; that this is what the Wisdom of our [Page 71]Forefathers thought fit to use, and tho' some Mens reasoning may render it in appearance as absurd, yet the consequence of an alte­ration will be much more dangerous than the continuance of the old Rules; that tho' this Lady's Case be unfortunate, yet the multitude of Purchasors, who have bought upon full considera­tion, and have been advised, and still conceive themselves safe under this Law, will be more unfortunate, if the Law be broken. Then 'was argued, That there could be no Equity in this Case, for it must be not only from the Party Appellant, but also against the Respondent, and that 'tis not, because he bought the whole: Her Portion, her Quality, and her being a Wife, create no Equi­ty as to the Purchaser, 'twould perhaps be prevalent against an Heir, but 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, 'twas 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: 'Tis nothing but Precedent that Consecrates half [Page 72]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. 'Tis 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 'tis 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 'twas 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, 'tis 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 'tis only to help one Subject to his Debt from another; that the King hath [Page 73]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. 'Twas 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 meerly upon his Suit; If the Person had been taken upon this Capias, he had been the Plaintiff's prisoner; and if he Escapes the Plaintiff had an Action for it, Yelv. 19. and the supposed Forfeiture is only for his Interest, 3 Cro. 909. And by this practise the King's Prerogative is to assist one Subject to de­ceive another: By the Law a Judgment is preferrable to a Bond, and binds the Land, which a Bond doth not till Judgment upon it; now here the first is to be postponed, by reason of the King's supposed Prerogative, which is only a Right in the King, for the use of the Party to have the Profits, 2 Rolls Abridg. 808. vide Stamford 57. 1 Inst. 30. & Hardres. 101, 176. 1 Inst. 202. Latch. 43. That the Elegit hath Relation to the Judgment, and so be­comes Prior to the King's Title, like the Relation of a Bargain and Sale to an Inrolment; and as a strong Argument for it, the words in the Writ of Elegit were repeated and enforced, quo die Jud' red­dit' fuit, which shewed a relation to that day; and consequently did affect the Lands at a time when the King had no Interest in it.

On the other side, it was argued with the Judgment, That this was the common Practise of the Court of Exchequer in this Case, that the Course of a Court is the Law of that Court, and to be taken notice of by all other Courts, that 'tis time out of mind, and consequently of equal duration with the Common Law, and always deemed to be parcel thereof; that the Records and Experience of the ancient Clerks were both concurring to prove it the common U­sage in the Exchequer, that when Lands are seized into the K's hands by virtue of an Outlawry and Inquisition, it was never known that [Page 74]the King's hands, were removed by force of an Elegit sued after­wards, tho' upon a Judgment precedent; that it hath been their constant practise to continue the pernancy of the Profits in the King, notwithstanding such Elegit; that 'twould be of dangerous Consequence to alter the same by a new Opinion; that 'tis not so very material, whether this practise be more reasonable then ano­ther, but whether it be certain and known? for if it be so, 'tis much better to have it continued then changed, because of the Confusion which must follow, by shaking the Rights and Posses­sions enjoyed under the former Practise: That 'tis not in many Cases so considerable what the Rule is, as that it be fixed and under­stood; and therefore no reason to alter it, or at least not without the use of the Legislature; for by the same colour that some Judges of Parts and Segacity shall think fit to swerve from their Predecessors, others of less capacity may pretend to do the same, and so nothing but uncertainty would ensue.

But besides, this is not meerly a Course of the Court, 'tis also agreeable to the Rule and Reason of the Laws; Baden hath no interest in the Land 'till he sues his Elegit; whereas the King's Ti­tle to the Land was compleat by the Outlawry and Inquisition, which was prior to the Elegit; and a Judgment of it self doth not affect the Land, till Election made; a Judgment at Law is only an Award of the Court ascertaining of the Debt, and declaring that the Plaintiff shall recover. In it self it doth no more assect the Land, then a Bond; 'tis true, when the Suit is ended by a Judgment, the Party may resort to an Elegit for his Execution, if he thinks fit, and can find any thing subject thereto. At the Common Law, before the Statute of Westminst 2. cap. 18. a Sub­ject upon his Judgment for Debt or Damages, could not have Execution by taking away the Possession of his Adversary's Land, because that would hinder the Man's following of Husbandry and Tillage, which then was reckoned beneficial to the Publick: So is 2 Inst. 394. and Sir William Herbert's Case, 3 Rep. 11, 12. no­thing but a Levari or Fieri facias; then by the Statute, sit in E­lectione illius, and Coke in his Comment on those words, saith, After the suing of an Elegit, he can't have a Capias: So that by him, the suing out of the Writ, is the determining of his Electi­on, 2 Inst. 395. Foster and Jackson's Case, Hob. 57. Even the Elegit it self doth not (when sued out) immediately touch the Lands; for if that the Chattels be sufficient to pay the Debt, and it so appears to the Sheriff, that thereby he may satisfie the Plain­tiffs Demand, then he ought not to extend the Land; and this appears by the frame of the Writ, as 'tis in the Register 299. 2 Inst. 395. which shews that no Title can be acquired to the Land, till the same be Extended.

The Elegit cannot by Law have relation to the Time of the Judgment, so as to avoid the King's Title; for relation is only a Fiction, and Fiction shall never bind or prejudice the King in his Right, much less in his Prerogative; and no Case can be shewn, where a Relation shall conclude the King: [Page 75]nor is it any Objection, That this is a Prerogative for the Benefit of a Subject; for in truth, all the Prerogatives are for the Ad­vantage and Good of the People, or else they ought not to be al­lowed by the Law. Besides Practise and Reason, there's express Authority in our Books for it, as the Case of Masters versus Sir Herbert Whitfield 1657. Hardres. 106. And if there were no Book for it, the Practise is enough; for the printing of a Case doth not alter or change the nature of it: 'tis as much Authority if it be not published, as when it is so: Masters recovered a Judgment against Sir Herbert Whitfield, and after the Judgment Sir Herbert was outlawed at another Man's Suit, and his Lands seized into the Protector's hands, and afterwards Masters took out an Elegit, and the whole Court was of Opinion, that the Lands being seized into the Protector's hands before the Elegit was sued out, there could not be an amoveas manus awarded, altho' the Judgment was prior to the Outlawry; this is the same with the Case at Bar; and tho' it may be surmised, That this was an Opinion vented in Evil Times, yet 'tis well known, that excepting their Criminal Proceedings in those Times, the Law flourished, and the Judges were Men of Learning, as Mr. Justice Twisden hath often affirmed upon the Bench. 'Twas further urged, That Prerogative was to be favou­red; that 'twas a part of the Law, 2 Inst. 296. especially when 'twas used, as in this Case, to help an honest Man to his Debt; that confessing of Judgments was oftner practised by Fraud to co­ver Mens Estates, then Outlawries were to defeat just Judgments: That if this Judgment was just and honest, 'twas his own default, not to sue an Elegit immediately. Then were cited many Cases to prove the King's Prerogative, as Fleetwood's Case, 8 Rep. 171. York and Athen's Case, Lane's Rep. 20. Hob. 115. 2 Rolls Abridg. 158. Stevenson's Case, 1 Cro. 389, 390. 'Twas argued that no­thing could be inferred from Tanfield's Opinion in 2 Rolls Abridg. 159. which is also in Lane's Rep. 65. for there the Debt was not a Debt to the King, till after the Death of the Testator; but here is a Forfeiture to the King before the Elegit sued: and admitting that the King hath only the pernancy of the Profits, yet while he hath so, no other Person can intermeddle, for the King is intitu­led to all the Profits, even to a Presentment to a Church, which was void before the Outlawry, as is Beverly's Case, 1 Leon. 63. 2 Rolls Abridg. 807. and Oland's Case, 5 Rep. 116. And Process of Outlawry is to be favoured and encouraged, as 'tis a Means for the recovery of just Debts; and the effects of them, by Forfeiture to the King, ought to be favoured as a Prerogative, wherewith the King is intrusted to that purpose: 'Tis a Penalty or Judgment up­on him to be put Extra Legem, because he contemns the Law, and will not obey it; so that as to him, 'tis the greatest Justice in the World, that he should not enjoy any benefit of his Estate by virtue of the Law, during the time that he despises it. And as to Baden, 'twas his own default that he did not extend sooner; he trusted the Party longer then he should, and for that he may thank himself: Wherefore upon the whole, 'twas prayed that the Judgment should be affirmed, and it was affirmed.

Hall & al' Executors of Tho. Thynne, Versus Jane Potter Administratrix of George Potter.

APpeal from a Decree of Dismission in the Court of Chancery: The Case was thus; That Thomas Thynne Esq; having in­tentions to make his Addresses to the Lady Ogle, gave a Bond of 1000 l. Penalty to the Respondents Husband to pay 500 l. in Ten days after his Marriage with the Lady Ogle; the Respondent assist­ed in promoting the said Marriage, which afterwards took effect; soon after the said Thynne was barbarously murdered; and about six years after Mr. Potter brought an Action upon this Bond a­gainst the Appellants, as Executors of Mr. Thynne, and proving the Marriage, recovered a Verdict for the 1000 l. Thereupon the Appellants preferred their Bill in Chancery to be relieved against this Bond, as given upon an unlawful Consideration; the Defendants by their Answer acknowledge the Promotion of that Marriage to be the Reason of giving the Bond. Upon hearing the Cause at the Rolls, the Court decreed the Bond to be delivered up, and Sa­tisfaction to be acknowledged upon the Judgment. The Respon­dent petitioned the Lord Keeper for a re-hearing; and the same being re-heard accordingly, his Lordship was pleased to Reverse that Decree, and ordered the Respondents to pay Principal, Inte­rest and Costs, or else the Bill to stand dismist with Costs.

And it was argued on behalf of the Appellants, That this Bond ought in equity to be set aside, for that even at the Common Law, Bonds founded upon unlawful Considerations appearing in the condition were void; that in many Instances, Bonds and Contracts that are good at Law, and cannot be avoided there, are cancelled in Equity: That such Bonds to Match-makers and Pro­curers of Marriage are of dangerous Consequence, and tend to the betraying, and oftentimes to the ruin of Persons of Quality and Fortune: And if the use of such Securities and Contracts be allowed and countenanced, the same may prove the occasion of many unhappy Marriages, to the prejudice and discomfort of the best of Families; that the Consideration of such Bonds and Se­curities have always been discountenanced, and Relief in Equity given against them, even so long since as the Lord Coventry's time, and long before; and particularly in the Case of Arundel and Trevilian; betweeen whom the Fourth of February, 11 Car. 1. was an Order made in these, or the like words: Ʋpon the hearing and debating of the Matter this present day in the presence of the Counsel Learned, on both sides, for and touching the Bond or Bill of 100 l. against which the Plaintiff by his Bill prayeth relief. It appeared that the said Bill was originally entred into by the Plaintiff unto the De­fendant for the payment of 100 l. formerly promised unto the said [Page 77]Defendant by the Plaintiff, for the effecting of a Marriage between the Plaintiff and Elizabeth his now Wife, which the said Defendant procured accordingly, as his Counsel alledged. But this Court utterly disliking the Consideration whereupon the said Bill was given, the same being of dangerous consequence in precedent, upon reading three se­veral Precedents, wherein this Court hath relieved others in like Ca­ses, against Bonds of that nature, thought not fit to give any counte­nance unto Specialties entred into upon such Contracts: It is there­fore ordered and decreed, That the said Defendant shall bring the said Bill into this Court, to be delivered up to the Plaintiff to be cancelled. Then 'twas further urged, That the Appellants had once a Decree at the Rolls to be relieved against the Bond in question, upon con­sideration of the said Precedent in the time of the said Lord Co­ventry and others; and of the Mischiefs and Inconveniences like­ly to arise by such Practises, which increase in the present Age, more then in the Times when Relief was given against such Bonds: and therefore 'twas pray'd that the Decree might be Reversed.

On the other side it was urged, That the Consideration of this Bond was lawful; that the assisting and promoting of a Marriage at the Parties request, was a good Consideration at Law, in all Times, to maintain a Promise for payment of Money: That this Bond was voluntary, and the Party who was Obligor was of Age and sound Memory; that here was no Fraud or Deceit in procu­ring it; that Chancery was not to Relieve against Voluntary Acts; that here was a great Fortune to be acquired to the Appellant's Testator by the Match; that here was Assistance given; that the Persons were both of great Quality and Estate, and no Imposition or Deceit on either side in the Marriage: That it might be proper to Relieve against such Securities, where ill Consequences did en­sue; yet here being none, and the thing lawful, and the Bond good at Law, the same ought to stand; that here are no Children Purchasers or Creditors to be defeated; that there are Assets suffi­cient to pay all; and consequently there can be no Injustice in al­lowing this Bond to remain in force; that it was the Expectation of the Respondent, without which she would not have given her Service in this Matter; and that it was the full meaning of the Appellant's Testator to pay this Money, in case the Marriage took effect; that there was a vast difference between supporting and vacating a Contract in Chancery; that tho' Equity perhaps would not assist and help a Security upon such a Consideration, if it were defective at Law; 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, 'twould be hard in Equity to damn such a Security, and therefore 'twas 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 'twas 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, [Page 79]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; 'twas 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. 'tis 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; 'tis 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, 'tis separated and dis­joyned from the Crown, as is Plowd. 215. yet 'tis 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 [Page 80]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 'tis 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; 'tis 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. 'tis 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 'tis in the Record, though in Cot­ton's Abridg 'tis 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 'twas 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 [Page 82]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.

'Twas 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.

'Twas 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 good for them; and that they had the like Power of Appeals, Writs of Error and Impeachments, &c. and, that the Cognizance of such Appeals in England would produce great inconveniencies, by making poor people to attend here; whereas, they might with less trouble and expence have Justice at home; that this did agree with the reasons of that Ancient Statute, 4 Inst. 356. that persons having Estates in Ireland, should Reside in that Kingdom, else half of their Estates should go to maintain the Forts there: That this practice of receiving Ap­peals here would be vexatious to the people of that place; and that no Court could have Jurisdiction but by grant or prescrip­tion, and that there could be no pretence for either in this place.

Then was it ordered in these or the like Words;

Whereas, a Petition and Appeal was offered to the House the — Day of—last, from the Society of the Governour and Assistants Lon­don of the New Plantation in Ulster, in the Kingdom of Ireland, against a Judgment given by the Lords Spiritual and Temporal of Ire­land, in Parliament there Assembled, on the—day of—last upon the Petition and Appeal of William Lord Bishop of Derry against the Decree or Orders made in the said Cause in the Court of Chancery there: Whereupon a Committee was appointed to consider of the proper method of Appealing from Decrees made in the Court of Chancery in Ireland; and that pursuant to the Orders of the said Committee, and a Letter sent to the Lords Justices of Ireland, by Order of this House, several precedents have been transmitted to this House, by the said Lord Justices, Copies whereof were ordered to be delivered to ei­ther side: After hearing Counsel upon the Petition of the said Society of London, presented to this House, praying that they might be heard as to the Jurisdiction of the House of Lords in Ireland, in receiving and judging Appeals from the Chancery there, as also Counsel for the Bishop of Derry; after due Consideration of the Precedents, and of what was offered by Counsel thereupon; It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament Assembled, That the said Appeal of the Bishop of Derry, to the House of Lords, in Ire­land, from the Decree or Orders of the Court of Chancery there, made in the Cause, wherein the said Bishop of Derry was Plaintiff, and the said Society of the Governour and Assistants London of the New Plan­tation in Ulster in Ireland, were Defendants, was coram non judi­ce, and that all the proceedings thereupon, are null and void, and that the Court of Chancery in Ireland, ought to proceed in the said Cause, as if no such Appeal had been made to the House of Lords there; and if either of the said Parties do find themselves Agrieved by the said Decree or Orders of the Chancery of Ireland, they are at liberty to pur­sue their proper Remedy by way of Appeal to this House.

Sir Caesar Wood alias Cranmer versus Duke of Southampton.

APpeal from a Decree in Chancery, the Case was thus; Sir Henry Wood, the Appellant's Unkle, makes a Settlement, in Consideration of a Marriage to be had between his Daughter Mary and the Duke, &c. to the uses following, i.e. in Trust, to Receive and Pay out of the Profits 450 l. a Year, to the Lady Chester, for the Education and Maintenance of his Daughter, till twelve [Page 84]years of Age, then 550 l. a year till Marriage, or Seventeen years of Age, which should first happen: and in Trust to pay the Resi­due of the Profits to the Duke after Marriage, he first giving Se­curity to the said Trustees to provide Portions and Maintenance for the Daughters of the Marriage equal to the Sum he should receive; and in case there should be none, then the same Money to remain to the Respondent, and if the said Mary should die before Mar­riage, or Age of Seventeen years, to such Uses as Sir H. W. should appoint. And if Mary, after Sir Henry's death, die under Sixteen, the Respondent then unmarried to any other Woman, or after and before Seventeen, the Respondent then living and unmarried; or if before Seventeen she should marry any other, or if she should refuse the Respondent, then 20000 l. out of the Profits to the Duke.

But if the said Marriage shall take effect after Mary's Age of Sixteen years, and she shall have Issue Male by the Respondent, then for the better Settlement of the Premisses upon the Issue Male, and a more ample Provision and Maintenance for the Respon­dent and his Wife, and the longest Liver of them, in Trust for the said Duke and Mary, for and during their Lives, and the Life of the longer liver of them; and after their Deaths, to the first Son, &c. in Tail Male; and for default of Issue Male to the Daughters. And for default of such Issue in Trust, for such Per­sons only as Sir Henry should appoint, and in default thereof to the right Heirs of Sir Henry.

Sir Henry W. at the same time, makes his Will, tho' dated after the Settlement, reciting that he had settled the Premisses upon the Duke and Mary for their Lives, and the Life of the Longer liver of them, &c. and confirms it; and in Case the said Martiage should not take effect, according to the Limitations of the Settle­ment; or if the said Respondent should die without Issue by Mary; or if he have Issue by her, and that Issue die without Issue, then the Remainder to Mary for Life, and afterwards to her first Son; and after several mediate Remainders, then to the Appellant for Life, &c. and after to Thomas Webb, &c.

Sir Henry Wood dies, the Marriage between Mary and the Duke afterwards takes effect upon her arrival to years of Consent: and they lived in that state, till she was near Seventeen years of Age, and then she dies without Issue.

The Court of Chancery decreed the Profits of the Estate to the Duke for Life.

It was argued for the Appellant, That here was a precedent Co­pulative Condition; that if the Marriage take effect after Sixteen, and there be Issue, then to the Duke; and neither of these being in the Case, the Decree is not consistent with the positive words of the Settlement, for that the Duke was to have it upon no other terms: That by this Settlement the Duke was thus provided for:

1. If the Marriage did not take effect, by Mary's refusal or ta­king another Husband, the Duke was to have 20000 l.

2. If the Marriage did take effect, and Issue was had, then the Duke was to have an Estate for Life, but not otherwise; that the words are plain and certain, that there must not only be a Marriage, but Issue Male between them; that tho' it should be a­greed to be a good Marriage within the intention of the Settlement, she living till after Sixteen years of Age, yet when a Condition Copulative, consisting of several Branches (as this doth) is made precedent to any Use or Trust, the entire Condition must be per­formed, or else the Use or Trust can never rise or take place: And it is not enough that one part only be performed.

As to the Objection from the intention of the Parties, 'twas Answered, That no such Intention did appear, or reasonably could be collected from any thing in this Deed or Will: and it would be too great a violence to the words, to break that Condition in­to two, which is but one, according to the plain and natural Con­texture and Sense of it.

It hath been said, That if the Duke cannot take an Estate for Life in the Trust, unless he had Issue Male by the Dutchess, then she her self could not take for Life by that Trust, unless there were Issue Male, for that their Estates are limited together; and then the Consequence would be, That if there were Daughters and no Sons, the Daughters would have the Trust of the Estate in their Mother's Life time, and their Mother nothing, which could not be the intent of Sir Henry Wood.

To this it was answered, That the same arises from a plain Mi­stake, and a Supposition that the Daughters (if any) should take, tho' there never were a Son; whereas the Limitation to the Daughters is under the same precedent Condition, as the Limita­tion to the Duke and Dutchess is: For the precedent Copulative Condition ushers in the whole Limitation of the Trust, so that the Trust to the Daughters could no more arise, without Issue Male born, than the Trust to the Duke and Dutchess.

And whereas 'tis pretended, That at this rate the Duke and Dutch­ess were to have had no Subsistence, till the Birth of Issue Male, which might be many years: it was answered, That this was a plain mistake of the Law; for this Trust being by the Deed and Will thus limited upon this precedent Condition of having Issue Male, they whose Estates in this Trust are thus limited upon this Condition, can take nothing till the Condition be performed by Marriage and Issue Male; and then by the Rules of Law, till some of those Persons to whom the Trust was limited, could take, the Trust of the Estate descends to the Heir at Law, and she was intituled to the Profits, till the precedent Condition should be performed, or become impossible; and if the Condition had been performed, the Trusts would have taken effect; and being not performed, but becoming impossible by the Dutchesses death be­fore she had Issue, the subsequent Trusts take effect upon her [Page 86]death. Besides that, it is pursuant to the Rules of the Common Law, which gives to the Husband no Estate for Life in the Wives Inheritance, unless he have Issue by her born alive; where­fore it was prayed that the Decree might be reversed.

Then it was argued on the behalf of the Respondent, That Sir Henry Wood by the same Settlement directs, that if the Duke died before his Marriage with her, then the Trustees should dis­pose of the Profits of the Premisses to the Lord George Palmer, the Duke's Brother (in case the Brother married her) and to the said Mary for their Lives, and the Life of the longer Liver of them: And from and after the decease of the Survivor of them, then to their Issue in Tail Male, &c. without adding any words of a preceding Condition; and yet says, In like manner, and for the like Estates, as he had appointed for his said Daughter and the Duke, in case of their Marriage; which plainly evidences his inten­tion to be, That the said Duke and the Lady Mary should have the Profits during their Lives, altho' they should never have Issue Male, as the Brother would have had in case he had married her.

Then 'twas urged, That Sir Henry Wood's appointing the Sur­plus of the Profits, over and above her said Maintenance, for the benefit of the Duke, until his marriage, shows the intent, for that it can't be imag ined that he should be provided for before his Marriage, and left destitute of all Support after it, unless he had Issue Male by her. Nay, his intention of Kindness to the Duke was proved further, by giving him 20000 l. in case she re­fused to marry him, or died before her Marriage.

And as to the Pretence of its being a Condition precedent; it was answered, That unless that Paragraph be made to inter­fere with it self, the Duke will be intitled to an Estate for Life, if there were no other Clause in the Deed.

For first, It's said, That for a more full and ample provision for the said Duke and his Wife, the Trustees, &c. Which words (according to the Construction of the Appellant's Counsel) must be useless and void, unless the Duke were not after Marriage to have as great, if not greater Supply, then he had before the Mar­riage.

Then 'tis said, That they should be seized in Trust for the Duke and his Wife, and the Survivor of them, for and during their natu­ral Lives, and the Life of the longer Liver of them. And from thence 'twas argued, That the meaning and import of the words (far and during) can be nothing less than the whole Duration and Continuance of their Lives, from and after Sir Henry's Death and their Marriage.

Then the Will of Sir Henry proves the Intention, for that it recites, That he had settled from and after his Decease, the Pre­misses in Trust for the Duke and the said Mary during their Lives, and the Life of the longer Liver of them, and takes no notice of the pretended precedent Condition; which shows that he de­signed [Page 87]them the Profits immediately after his Decease and the Mar­riage.

Then in the Limitations over, they are not to take any benefit of or by the Premisses, until the death of the Duke and his Wife without Issue; therefore it must be understood, that the Profits in the mean time should remain to the Duke and his Wife, or the Survivor of them. And then it was further observed, That the Duke comes in as a Purchaser upon as valuable a Consideration as any in the Law, viz. Marriage; and the Limitation over to the Respondent is avoluntary Settlement.

And as to the Objection of the Marriage being before Sixteen, it was not much insisted on the other side, and in reason cannot be; because her continuing married till after Sixteen, doth fully satisfie the intent of the Deed, in reference to this Matter. And many other Reasons were urged from the Intent of the Parties, and the Nature of the Interest, the same being a Trust Estate, and proper for Equity to construe. And upon the whole it was pray'd that the Decree might be affirmed, but the same was re­versed.

Sir Caesar Wood alias Cranmer, Versus Thomas Webb.

APpeal from a Decree in Chancery: The Case was founded upon the next preceding; The Respondent was one of the Coheirs of Sir Henry Wood, and claimed a Moiety of the Profits of the Premisses during the Duke's Life, and the same was decreed accordingly: And now it was argued on the behalf 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, [Page 88]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:

HEle 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 Ʋlt. 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 Gau [...]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 'tis 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. Ʋ. 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 [Page 89]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 Ʋxborough, 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 Ʋxborough, 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.

'Twas 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.

'Tis against all Reason and Sense, That because one Ordinary thought him able to take Orders and Preach in his Diocess, there­fore, another must deem him able and sufficiently Learned (tho' he knows the contrary) to accept a Benefice in his Diocess; 'tis Absurd, that upon a Presentation, he is to be Examined, but not refused, tho' found inhabilis, and this because he was in Or­ders, and he could not be Presented unless in Orders, and yet tho' in Orders, if he be Presented, he must be Examined, but to what purpose, passeth all understanding, if his Priesthood or Or­ders presumes him to be qualified! 'Tis likewise to suppose Lear­ning and Ability to be an inseparable quality; That an ordi­nary Scholar can never become less so. By the Old Law, the Bishop had two Months time to Examine, 2 Roll's Abr. 354. by Hob. 317. He hath a convenient time, and by Can. 1 Jac. 1 cap. 95. the two Months is reduced to 28 Days: And the Ordinary both in Conscience and by the Obligations which his very Order doth import, is obliged to Judge for himself as well as to Examine; the contrary is repugnant to his Office of a Judge, to be forced or compelled to institute every Presentee, fit or un­fit: Besides the Ordinary pro Tempore hath the particular care of all the Diocess, and during a vacancy, is to take care of supply­ing every particular Cure within his District; then when he ad­mits and institutes, the very form of Words, is, Accipe curam me­am & tuam, which renders it more Absurd, that nolens volens, he must transfer his Cure to a Man not able in his Judgment to exe­cute it.

'Tis against the Rule of Law, for that the Words of it are express, articuli Cleri, cap. 13. and this Cooke declares to be Af­firmative of the Common-Law; Item petitur quod personae Eccle­siast' quas Dominus Rex ad beneficia presentet Ecclesiastica si Episcopus eas non Admittat ut puta propter defectum Scientiae, vel aliam causam rationabilem, non Subeant examinationem Laicar' personar' in casi­bus antedictis prout his temporibus attentetur de facto, contra Canoni­tas sanctiones, sed adeant Judicem Ecclesiasticum ad quem de jure pertinet pro Remedio prout justum fuerit consequendo respons' de Ido­nietate persone presentate ad beneficium Ecclesiasticum pertinet Exami­natio ad Judicem Ecclesiasticum & ita est hactenus usitatum & fiat in futurum.

Here is Idoneitas persone praesentate; and the words of the Writ, are quod permittat praesentare Idoneam personam. And if the Pre­sentee were not a fit person, no such Writ can be maintained.

Then my Lord Coke in his Comment upon that Statute in 2 Inst. 631, 632. saith, that there may be diverse Exceptions to Persons presented as Bastardy, Villenage, Outlawry, Excommu­nication, Laity, Under age, or Criminal and Lewd in his Con­versation, or inability to discharge his Pastoral duty, as if he be Unlearned; and the Examination of the Ability and Sufficiency of the Person presented, belongs to the Bishop, who is the Eccle­siastical Judge, and not a Minister, and may and ought to refuse the Person presented; if he be not Idonea persona: And if the cause of refusal, be default of Learning, Heresie or the like, be­longing to the knowledge of the Ecclesiastical Law; then he must give notice to the Patron, so that default of Learning, is by him (who was no great friend to the Jurisdiction of Court Christian) agreed to be Subject to the Ecclesiastical inquiry, and then in Pleading, he must show the cause of refusal, and the Party may deny the same, and then the Court shall write to the Metropoli­tan, or to the Guardian of the Spiritualities, sede vacante, to certifie if the cause be thus, and his Certificate is conclusive; if the Presentee be Dead, it shall be tried by a Jury, 15 Hen. 7.7. the Bishop is declared to be a Judge, and not a Minister in this case of Examining a Man's Ability; he is a Judge in this case as he is in case of a Resignation; for an Ordinary may refuse it, and without his acceptance, 'tis no Resignation, and must be so Pleaded, Noy. 147. Bro. tit Bar. 81. & 2. Cro. 197. and so agreed, even in the Case of Leach and Thompson, in Reg. 53. is a Consultation upon this very surmise that inability, ad Retinend' beneficium propter Crimina, belongs to Court Christian, and that the Ordinary is Judge thereof, which is much stronger than our case, because there was a Freehold vested by induction. But this hath been agreed by that Court from whose Judgment the present Appeal is, that a refusal may be upon insufficiency, appearing upon an Examination, upon a new Presentation; and constant practise proves it.

The greater if any doubt is upon the Plea, if good, it says, that he was Examined, and upon Examination, was found incapa­ble.

The Exception taken to it, is, that it doth not set forth the par­ticular parts of Learning, in which he is deficient, that the Tem­poral Court may Judge, if it were a sufficient cause of refusal, which is to change and turn it, ad aliud examen, that Learning is requisite for a Presentee to be Benefic'd; they would not have the Ordinary to determine what Qualifications a person ought to have in order to take a Benefice, but the Judges in Westminster-Hall: They can have no colour for this pretence, but that the Ordinary may have refused, when competently Learned in their Opinions, and they cannot say that the Law hath settled any Rules or mea­sures of Learning requisite. Some say, Latin is not requisite since the Liturgy is now in English, and therefore they would Judge of it; others say, the less Learning the better Preacher, if can Read, and Pray, and Preach, and be indued with Spiritual Gifts, [Page 92]and so is their Replication; others say, that the Ordinary's Judgment must be submitted to the Judge's Opinion of the pro­portion of Knowledge necessary; then they have a Popular pre­tence, that this will give the Bishops too great a Power of refu­sal, and so restrain Patrons from their privilege of Presenting, and thereby make themselves Collators: But, there's no danger of that, because there must be notice and a convenient time for a­nother Presentation, and the danger of this restraint, is as much the other way, for then the Temporal Courts are to do it, and its much at one to the Patron, which is to declare the inability, the Ordinary or the Temporal Courts: On both sides, it must be a­greed, that default of Literature, is a good and just cause of re­fusal, the Question is, who shall judge of it; it is said, minus Sufficiens in Literatura & ca ratione inhabilis, i.e. (it being inde­finite) in omni Literatura necessaria.

But, they Cavil at the Word minus sufficiens, as if that agreed him somewhat Learned, and forget that 'tis said, ac perinde inca­pax: And, minus sufficiens is in Lawyer's Latin, totally insuffici­ent, and so 'tis used in all Demurrers to Declarations, Pleas, Re­plications, quod Narr' vel placit' pred' & Materia in eodem content' minus sufficient' in Lege existunt ad quam vel quod, the party, ne­cesse non habet nec per Legem terrae Tenetur aliquo modo respondere; i. e. 'tis good for nothing, 'tis insufficient; the Court in their Judgments upon the insufficiency of the Plea, do always say, quia minus sufficien' existit.

Then it was argued, That it is a good Plea to all intents and purposes, from the nature of the thing, and the impossibility of making it more particular and certain. 2. From the sufficiency of it to all intents and purposes of Tryal. 3. From the Precedents and those of Antiquity which warrant this form of pleading. 4. From the mischiefs and inconveniencies which must follow and ensue, if a greater particularity were required.

1. From the nature of the thing, and the impossibility of ma­king it more particular and certain; if the Bishop were bound to set down in particular, and at large, every point of Learning wherein this poor wretch was and is deficient, 'twould be a Plea­ding like to a justification of an Action done by a private Per­son, and not like to the Pleading of the Act of a Judge, which this is; 'twould be so large as to render it impossible for to joyn an Issue thereupon; and then they would have demurred with a Cause, because multiplex duplex incertum & perplex', and the rest of our usual Adjectives upon those occasions; the Assignment of several and many particulars would have been double, and good cause of Exception, because one particular might be found true and another not, and the Assignment of one particular would have been adjudged insufficient, for then they would have said that Learning is of a Complex nature, and if a Man should fail in answering any one particular, tho' common Question, yet he might be qualified in general: And therefore the Assignment of [Page 93]one defect, tho' never so gross, shall not make a Clerk, minime capax, and therefore no good Plea: For, if a particular be Assigned, that would not prove a general Defect of knowledge, accor­ding to the words of the Law; which is the only thing that could make him incapable, ad habend' beneficium cum Curia Animar' and therefore the Bishop as a Judge, returns him in literatura insuf­ficiens & ea de causa minime capax, and the special instances would have been Evidences upon a new Tryal, or Examination before the Arch-Bishop.

Now this cause of refusal, distinguishes the case from all others, that they can insist upon; all other inabilities of a Clerk depend upon one single point, as Bastardy, Villenage, Outlawry, Excom­munication, Lay-man, Under-age, or Ecclesiastical Infancy: So all Crimes must have their foundation from a particular Act, as Adultery, Perjury, Simony, &c. In these it shall not be enough to Plead that he was inhabilis generally, or criminosus, generally & ideo inhabilis, because no body can be criminosus, but he that hath done some particular Crime, and that is to have a several Tryal according to its respective nature; if it be an Ecclesiastical Offence, then there is a particular method of Tryal; if a Tem­poral, then another, and so says Coke, 2 Inst. 632. and therefore a particularity is required there, but here 'tis all tryable by the same way, viz. a new Examination before the Arch-Bishop: Here the matter it self admits of no greater certainty; for that 'tis a general deficiency of Learning only, which can make an in­capacity of discharging the Pastoral Office; it is a matter that must appear by a variety of Questions, and cannot be proved by any one single instance whatsoever.

This is the true reason and difference why in several Cases gene­ral Pleading hath been denied, and why in this Case it hath been always used, and never excepted against.

Then it was argued, That this Plea was sufficient to all the in­tents and purposes of Tryal and Determination.

By our Law that Plea is sufficiently certain, which may be Tryed without inveigling either Court or Jury, that is, it must be in­telligible and plain; and this surely is plain enough, the Ordi­nary had a Power to refuse him, for want of Learning, sufficient to enable him to discharge his Pastoral Office; he Pleads that he was Minus sufficien' in Literatura; this is to be tried by the Certificate of the Arch-Bishop, or the Guardian of the Spirituali­ties, during a vacancy and that is evident, by 39 Edw. 3.1, 2. 40 Edw. 3.25. and from Speccot's Case, 5 Rep. 7.

There never was an Objection made to the uncertainty of any Plea, if the Matter could be fairly reduced to an Issue for a Trial; now here the Court might certainly have written to the Arch­bishop to have known utrum this Creature, were minus sufficiens in Literatura & ea Ratione inhabilis, and the actus Curiae of the Bishop would have been Evidence before his Grace, and he might have [Page 94]certified that he was, or that he was not sufficiently Learned: No, say they, the Court must not write to the Archbishop to know that, till it be said in what Points of Learning he was de­fective; and if these shall be thought material Parts of Learning for a Rector, then they must write to know if Hodder had them or not; but if they think them not material for the Qualifications of a Pastor, they must not write at all: This is the true English of the Argument. But it was argued, That the Temporal Court is only to judge, that the Cause of Refusal, if true, was a suffi­cient Cause; and the Books are, that a general default of Learn­ing is a good Cause; and this the Archbishop is to try: And this is certain enough for to make an Issue or Question proper for that Trial.

Besides, A greater Latitude and Generality hath of late been al­lowed in pleading of Proceedings in Courts, and before Judges, then formerly. In ancient days, if a Man pleaded a Judgment in a Court in Westminster-hall, they set forth the whole; then they came to allow of a taliter fuit processum, and an Abridgment of the Proceedings; then came a Recuperavit only: And this was because that all Proceedings in the Superiour Courts were to be presumed regular, till the contrary were shewn: But this was denied a long while to Inferiour Courts, because these were tied to stricter forms, and therefore were still forced to set forth the whole; then they allowed a taliter fuit processum for them, provided still they were Courts of Record: But now they al­low it in pleading of a Justification upon a Recovery in an Hundred Court, because the whole must be given in Evidence; so that such a formal Nicety in Pleading is not generally requi­red now as was formerly. Besides, In Matters triable by the Spiritual Law, there is always less particularity required in Plead­ing, then in others triable in Courts Temporal, as in Bastardy, Divorce, Deposition, Literature, Profession, and the like: It's enough if so much be alledged, that they may write to know whether the Fact be so or no; and upon a Return thereof that 'tis so, they can give Judgment. Now if his Grace my Lord Archbishop, in this Case, upon Examination had returned that this Presentee was in Literatura minus sufficiens, as undoubtedly he would, (and so the Plaintiff thought, otherwise he would have joyned Issue) and so ea occasione inhabilis, then unquestionably Judg­ment must have been for the Plaintiff in Error; for default of Learning is a good cause of Refusal, and must be agreed to be so. The Rule laid down by my Lord Anderson, 3 Leon. 200. is, That in Matters triable by our Law, all things issuable ought to be spe­cially alledged, in order to have a convenient Trial; but in Mat­ters Spiritual the Law is otherwise, because there's no peril in the Trial; and therefore if certain enough to ground a Certificate it's sufficient.

My Lord Hob. 296. in Slade and Drake's Case, saith, That in pleading a Divorce, you must shew before whom it was, 11 Hen. 7.27. but you need not shew all the Proceedings as you should of a Recovery at Common Law; and the Reason why you must shew before whom, is only that it may be known, who is to try and certifie it. In Burdell's Case 18 Edw. 4.29, 30. 'tis clear that in all Spiritual Acts triable by the Spiritual Law, it is necessary to plead no more than what may give the Court ground to write to the proper Ecclesiastical Officer, and to judge by his Certificate. Now here is ground enough in this Case for the Archbishop to ex­amine this ignorant Person, for so he must be taken to be; for so he is found by one Ordinary, and he refuses to be examined by the Archbishop: he is pleaded not to have Learning enough to capacitate him for a Cure of Souls, and that by one whom the Law hath constituted his Judge: 'Tis true, this is traversable and triable by the Archbishop, but all those Instances of his Insufficiency that were taken in the Bishops Court, would be Evidences of the same before the Archbishop, proceeding in an Ecclesiastical manner, tho' not so proper, tho' not possible to be set forth in the Temporal Court; this is not a General Return of a Person inhabilis, which might occasion an Enquiry into all sort of Disabilities; but a Special Plea of inhabilis, quia insufficienter Literatus; and there­fore no further Enquiry is necessary, then into the Learning of the Party, as Capacitates him for a Rector.

It was in the third place argued from the Presidents of Plead­ing in this Case, and other Cases of Pleading upon like Occasions, and those both Ancient and Modern.

40 Edw. 3.25. In a Quare Impedit (as this is) the Bishop pleads as here, That he Examined the Clerk presented, and found upon Examination que il ne fuit sufficiens Letter'd, and thereupon alledges Notice to the Patron, & per lapsum temporis, he justifies his own Pre­sentation: Upon this, there's no dispute but that thus far it was well pleaded; but the only doubt was, whether the words, and so disabled, should be added to the Issue? and they were ordered to be part of the Issue in that Case, and so they ought to be in this Case, and so they are & ea ratione inhabilis; this Case is exactly parallel to that in question; and upon this Plea there was Issue joyned, and the Trial was directed to be by the Guardian of the Spiritualities, va­cante Sede Cantuariensi, nothing can be offered against this, only that 'tis Ancient, and the Law is changed, but by what Authority is hard to know; there is no Act of the Legislature to alter it: much hath been done to help against Niceties in Pleading; nothing to require more. And Bro. Quare Impedit 168. they were compelled to joyn Issue, able or not able, in that respect.

39 Edw. 3.1 & 2. The Earl of Arundel versus the Bishop of Chester, says the Book, tho' it appears plainly to be a mis-print, from the name of the Church, and the Trial per pais, and the Antiquity of the Bishoprick it self, it must be the same, that in the Abridgments is [Page 96]called the Earl of Arundel versus the Bishop of Exeter, the Bishop pleads as here, That he examined the Clerk presented, and found him persona inhabilis, to have a Benefice in the Church; and Issue is joyned upon that which is stronger then ours, and a Trial by Jury is directed out of the County of Cornwall, because the Clerk was dead. Here are two Cases in which all the different Trials are taken that can be had by the Guardian where the Presentee was living, and by Jury when dead, because he could not be ex­amined: And in both these Cases Issue is taken upon this Plea, and that in great Cases, and after long Debate. And, according to the Lord Coke, in this Reign the Law was pure and uncorrupt, and flourished.

Then were urged Modern Precedents, Mich. 15 & 16 Eliz. Rot. 1941. Molineux versus Archiepiscopar' Ebor' in a Quare Impedit, in which the Plea of the Archbishop is the same in totidem verbis, as here, Persona in Literatura minus sufficiens, seu habilis ad habend' praed' Ecclesiam, and there is no Exception taken to the Plea, but only Issue joyned upon notice, or no notice, before the Lord Chief Justice Dyer.

Another Precedent there is Hill. 6 Eliz. Rot. 646. Bodenham versus Episcopor' Hereford', there is the same Plea in Bar as here, That the Person presented was Persona in Literatura minus suffici­ens seu habilis ad habend' aliquod Beneficium Sanctae Ecclesiae, and then avers notice to the Patron: and no Exception taken to the Plea, but Issue upon notice.

Pasch. 6 Eliz. Rot. 714. Paschall versus Episcop' Lond' Quare Im­pedit, the Ordinary pleads an Examination de habilitate, honestate & doctrina ejus; & pro eo quod idem Episcopus invenit praed' Chri­stopherum fore criminosum, & de non sana Doctrina ideo recusavit and notice; and even to that general Plea there's no Demurrer, but Issue upon notice. 'Tis no Answer, that here was no Solemn Judgment upon this very Point, for it doth rather inforce the Au­thority of the Precedents; it argues that the Law was taken to be so clear for the validity of this Plea, that no Lawyer would ven­ture upon a Demurrer, but rather would trust to a Jury upon the Evidence of notice, it argues it so constant a Course and Method of Pleading in these Cases, that none was so hardy as to dispute it.

38 Edw. 3.2. Perjurius was alledged by the Bishop in the Pre­sentee, and held to be well enough, but nothing of manner, time and place, nor any Conviction of it mentioned, and yet this was admitted a good Plea, 2 Rolls Abridg. Presentment 356. and so says Rolls, it shall be, tho' in a Suit between the Ordinary himself and another, Dyer 293. 'tis cited Bro. Quare Impedit 170. Ju­stice Rhodes 3 Leon. 100. vouched a Case in 30 Edw. 1. out of a Manuscript of the Lord Catlins, wherein upon a Quare non Admi­sit, the Defendant pleaded that the Presentee was Schismaticus & Adulter, and the Court commanded that he should hold to one or other of them, for which he said Adulter; from hence 'tis ma­nifest, that the Court did not dislike the Plea for the generality, but the doubleness.

And then it was said, That after all these Presidents on this side, and many others which might be Cited of the like generali­ty in other cases, 'twill be difficult to shew one single Instance or Case in which this matter of general defect of Learning was ever pleaded otherwise, or any one Judgment against any Bishop whatever, upon such a Plea; for tho' in some Cases, which they say are parallel and similar, tho' in truth they are not, as Crimino­sus and Schismaticus hath been adjudged too general, yet this Plea of Minima in Literatura sufficiens ac ea ratione incapax, as it has always been used, without alteration of words, so has it never yet been excepted against, and in these Presidents of Edw. 3. be­fore cited, hath been thought good, and Issue joyned there­upon.

This was the ancient form of Pleading, and (as all those anci­ent Pleas were) founded upon Reason, being such as the Subject Matter is capable of.

In the Case of a Coroner it's a good Cause to remove him, quia fuit minime idoneus ad exequendum officium istud, and no charge of any particular insufficiency assigned, Fitzh. Nat. Brev. 163. and there is no question but that 'twould be a good Cause, and suffici­ently certain, in a Scire Facias to repeal, vacate, or cancel Let­ters Patents for an Office in the Law, to say in Legibus hujus Regnt Angliae minus sufficient' instructus, without assigning any particu­lar Case or Statute that a Man blundered at, or was ignorant in. Suppose an Office in the Law, to which the King or a private Per­son hath the Nomination, and the Court refuses to admit a Man so named, and an Action brought for that Refusal, &c. would it not be a good Plea to say the Party was minus sufficiens in Scientia Le­gum & ea Ratione inhabilis; and particular Instances are Eviden­ces.

This is in the Negative, like a non fuit dampnificatus, and there you never need to shew how; unless 'twere a particular Incum­brance at the time of the Contract; otherwise 'tis always a good Plea.

In Non Compos 'tis never shewn in particular wherein, or what Feats of Frenzy; Non compos implies that he had a general De­fect, disabling him at that time to do an Act obligatory and valid; and that resembles this, for you need not shew wherein; but the Particulars are Evidence.

The Reason of the thing proves the Convenience and Solidity of the distinction between Pleading a Negative and Affirmative: For instance in this Case, the Negative pleaded implies an entire denial of sufficient Learning to qualifie him for a Cure of Souls, and that justifies the Ordinary; and our Law Books are full of this Di­stinction; Mode and other Circumstances of Quality, Time, and Place, are requisite in Affirmative Pleas, none of which are neces­sary in Negatives. There might be cited infinite numbers of Ca­ses to that purpose, as Mauser's Case 2 Rep. 4. Broughton's Case 5 Rep. 24. Aston and Hill 3 Cro. 253. Hutchinson versus Lowson, 3 Cro. 393. Wild and Dowse, Latch. 159. And as the Foundation [Page 98]of all those, is the 40 Edw. 3.30. which is the ground of all these, and many more subsequent Authorities to the like effect: But be­sides, there's one modern Case, 'tis Church versus Brunswick, Sid. 334. Bond to pay from time to time a Moiety of all such Moneys as from time to time he should receive; and payment of a Moiety generally, without shewing the particulars in certain, was held a good Plea; and the reason of that Judgment maintains the Rule now contended for, which was, because 'tis of what he should receive from time to time; otherwise if those words had been o­mitted; because in that Case there would be a stuffing of the Rolls with a multiplicity of Particulars; and the same Reason holds in the Case at Bar.

Then 'tis considerable, and deserving of a Thought, That if Learning be requisite to an Office Temporal, for a Slander in which an Action lies, there these very words would bear an Action. As to say of a Judge, or the like, the very words here mentioned, with reference to his Office, 'twould be deemed Scandalous and Actionable: Now our Law will not allow uncertain, doubtful, and ambiguous words to be so.

Even in Affirmatives our Law allows of general Pleading, where Particulars would be many: As in Bond for performance of Co­venants upon an Apprentices Indenture for finding him Meat, Drink, Washing, Lodging, and other Necessaries, held that in­venit Meat, Drink, Washing, Lodging, & alias res nocessarias, is a good Plea, tho' intirely uncertain what or how much; and the Reason is not only, because 'tis in the words of the Covenant, for that Reason doth not always hold, for many times you must shew how, and are forced to vary from the words of the Covenant in the Breach; as in case of quiet Enjoyment, Breach must al­ledge how and by whom, and under what Title the Man was di­sturbed; but there's another Reason, because the Particulars would be many.

Cryps versus Sir Henry Baynton, 3 Bulstrode 31. Case sur assump­sit, That J. S. being a Friend of the Defendants, and coming to the Plaintiffs House, he fell sick; the Defendant, in consideration that the Plaintiff would provide for him such Necessaries as he should want, he would bene & fideliter solvere proinde: The Plain­tiff shews that he lay there two Months; that the Plaintiff provi­ded him Necessaries amounting in value to, &c. and held good without shewing the Particulars to avoid a multiplicity of Reckon­ings; so 'tis for a Surgeons or Apothecary's Cure.

Another Rule in Pleading there is, That a Certainty, or a Generality in Pleading shall be required, according to the nature of the Subject Matter pleaded. In pleading of Breach of a Sta­tute Law, it's enough to use the Negative of the words of such Statute, as it is in Case of a Covenant; and by the same rea­son in this Case, where a Statute says the Bishop may refuse propter defectum Scientiae, it's enough to say in Literatura minus sufficiens, especially when 'tis added ac perinde inhabilis.

Then were urged the Mischiefs and Inconveniences which must ensue and follow upon the Construction which they would make, that this Plea is uncertain; for their Reason only can be, as was said before, that the Court may judge if it be such a Deficiency of Learning as disables to hold a Curacy of Souls; and this is the Reason all their Cases go upon, and the Reason insisted upon be­low; i. e. in effect that they must try it, not the Archbishop. The same Pretence is applicable to any other defect, and 'twill in Consequence confound Jurisdictions; 'twill make an Enlarge­ment of the Temporal, and Diminution of the Ecclesiastical Juris­dictions, tho' both are founded upon the same English Laws, and of equal Age and Authority: Nor is it any Answer which they have alledged against this, That the Judgment at Law is not that this Hodder shall have Institution, but that a Writ shall go to the Metropolitan to require him to admit a fit Person upon Mr. Hele's Presentation; and that if Mr. Hodder be presented, the Archbishop may refuse him as insufficient; and so the Archbishop is still Judge of the Sufficiency. This looks plausible: but they omit or forget the Consequence, that if this Judgment stand, then if the Archbishop refuse, the Temporal Courts must Judge upon another Writ, Whether the Cause of Refusal were in a point of Learning, which they think requisite, for he must not plead a general Defect of Learning, but mention Particulars, that they may judge of them; this is to subject even his Grace the Metropo­litan to their Opinion, in an Affair within his own Jurisdiction and Conusance. It is at last to enforce the Episcopal Judges to contradict their own Opinions, and to admit Persons which they think not sufficiently Learned; tho' the first Judgment doth not directly place in Hodder, yet the next will, if the Archbishop prove of the same mind: Now this is apparently the Consequence, from the pretended Reason of the Judgment for them; and it is in effect to deny the old Law, that a defect of Learning is a suffici­ent Cause of Refusal; and that the Ordinary is Judge of that De­fect, and not the Temporal Court.

And then as to the Cases objected Dyer 254. the Bishop of Nor­wich's Case in a Quare Impedit, which is likewise in 2 Rolls A­bridg. 355, where the Bishop pleads that the Presentee was a common haunter of Taverns and other Places, and Games un­lawful, ob quod & diversa alia Crimina consimilia praed', the Presen­tee fuit Criminosus & sic inhabilis & non idonea persona, and this was held an ill Plea: But the Grounds and Reasons of that Judg­ment were not for the generality of the Plea, but because the de­fects specially declared before were not sufficient to make the Pre­sentee & sic Criminosus, as being not Mala in se, but prohibita by particular Laws under certain Penalties. Nay, the Argument they would make from the general word Criminosus, will not hold in the Case in question, but is clearly distinguishable from it; because one single Act, one Crime specially set forth, would disable the Man; but in this case Ignorance, that works a Disabi­lity, must not be of any one particular thing whatsoever, but a [Page 100]general defect of Knowledge. And another Reason against their Inference from these and the like Cases, is this, they belong to a different Examen, and upon that they require (as was said before) a different pleading.

The great Case, and the only one that can be pretended to come near this, is Speccot's Case, mentioned in every contempo­rary Report of that Age, as a new Case; and a new one it is; and the Reasons of it are differently reported in divers Books; and in truth, the Reasons of the Judgment do not warrant it, nor make it applicable to the Case at Bar.

The Authority of it is questionable, for they agree, Schism or Heresie, which the Judges there take to be all one, a Cause of Refusal; and others said, they did not know what was Schisma­ticus inveteratus; but they did not consider that the Archbishop might, tho' they did not; but perhaps the Ordinary may judge that to be Schism which is not: and therefore the Temporal Courts are to judge what is Schism; and in the enforcing of this Case be­low, they said the Ordinary is Judge only of Matters of Fact, not if the Fact be Schism; which is somewhat strange.

The Reports of that Case are 5 Rep. 57. 1 Anderson 189, 190. Gold. 36, and 52. and 3 Leon. 198, 199, and 300. in that Case the Bishop pleaded that the Presentee was Schismaticus inveteratus & ideo non habilis: upon the validity of this Plea there were di­vers Arguments; Two of the Judges, says my Lord Anderson, were for the Plaintiff, and two for the Defendant; and for the Decision of the Matter, the Opinion of the other was asked, and by the greater Opinion Judgment was given pro quer.

Then were repeated my Lord Anderson's words, fol. 189. the Instances that were urged, were, says he, Criminosus & Perjurus, but they are Matters triable both by Law, Spiritual and Temporal, and the Coment, or how is necessary to be shewn to determine the Trial; but Schismaticus in the principal Cause shall be tried only by the Spiritual Court, and not by the Temporal, as that of an Heretick may be generally pleaded: And divers Cases were put to prove General Pleas and Issues triable at Common Law, and yet says he Judged pro Quer'.

This is my Lord Anderson's Opinion of that Case, and whether the Ancient Authorities vouched in that Case, do warrant that Judgment, must be submitted.

Besides, by our Law 'tis not any one Opinion, tho' judicially delivered, that can make or alter the Law, nay, it doth not ob­lige any further than the reason of it is considerable, and agrees with the constitution and the Rules of Law; my Lord Vaughan always declared in favour of Reason and Authority, and that in Honour of our Law, for the contrary is to say, 'tis founded upon no Reason; then 'twas urged, that this Judgment was when the Courts below were in struggle with the Ecclesiastical, and the then High Commission Courts Erected by 1 Eliz. had given some provocation; which, with frequent Prohibitions, gave occasions to the Disputes between the Bishops and the Judges, in the be­ginning [Page 101]of the Reign of K. Jac. 1. But admitting the Case to be Law, the same is easily distinguishable from this, and founded upon different Reasons which cannot govern or influence this.

'Twas urged first in that Case there was some possibility for the Bishop to have set out the Heresie certainly and particularly, for all Heresie must be founded upon some particular Tenet, that is Repugnant to the common received and Orthodox Doctrine. Now in this Case, say they, the Heresie ought to be Assigned, that the party may Traverse it, and purge himself, and the Arch-Bishop not to be inveighled and obliged to run over all the species of Heresie, which, say they, may be almost impossible, but may have only one particular Opinion to Examine, whether the Pre­sentee did obstinately maintain it, for if the Temporal Court had been of Opinion, that such Tenet in particular was not He­resie, tho' the Ordinary thought it so, yet then they would have over-ruled the Plea, and not have wrote to the Arch-Bishop at all: This is the sole cause of that Judgment, and then the consequence will be as was observed before. But their own reason fails in this Case, for here the sufficiency of Learning is Traversable; for as hath been shewn it hath often been Traversed, and as to the ea Ratione inhabilis, no Objection can be to that, for the old Au­thorities Cited do warrant, nay, require it; and all Pleas of Spe­cial non est fact' as by breaking of a Seal, and the like are in the same manner.

Then besides the very words of the Law of Articuli Cleri, are very much worthy of consideration; it impowers the Bishop to refuse a Clerk, propter defectum scientiae & alias Causas rationa­biles, now all these Causes of Refusal, mentioned in their cases, comes under the causas Rationabiles, and causa vaga & in certa estnon Rationabilis, now want of Learning is not included by intendment, but by express words, and therefore need not otherwise be set forth; take it for granted, that as they would have it, the Tem­poral Judges are to Judge what is a reasonable cause of Refusal; yet they are not to Judge, if defect of Learning be a cause or not, for in that the Statute is positive; then if said to be deficient in Learning, & ea ratione inhabilis, they had nothing to Judge up­on, they were only to write to the Arch-Bishop to know if the Fact were true, if he were deficient, and therefore it need not be set forth any otherwise, then as the Statute expresses it; tho' in that case, they say, there are divers sorts of Schisms and Heresies in Doctrines on which the Bishop might warrant his Refusal, yet 'tis not so much as once pretended, there are any Opinions deli­vered in those cases, that deficiency of Learning is subject to the same Rules of Pleading.

Then the Plea is in the Negative, as was shewed before, which is more than enough to make a good difference; and Negatives in a Bar are always allowed to be more general because most fa­voured, and especially here, where the matter and person to which the words are applied, do sufficiently restrain and deter­mine the seeming uncertainty of it.

Nothing can be pretended to reduce this to a greater certainty, but the Canons or the Statute of 13 Eliz. cap. 12. or other Laws of the same nature, 1 Canons of King Jac. 1. made in 1602. and they were made pursuant to Canons made, 1562. by which, no Man was to be admitted, nisi rationem fidei juxta Articulos Re­ligionis in Synodo Episcoporum & Cleri Anno, 1562. approbatos La­tine reddere & eandem Scripturae testimonio Corroborare possit Can. 3, 4. Conditiones in ordinandis requisit', this is merely a Negative injunction on the Bishop never to confer Orders upon any Man that cannot do this, it is not mandatory upon him to ordain e­very Man that can do this, nor does it any way lessen or diminish the Authority or Judgment of the Ordinary in Examination of the fitness and Learning requisite.

So is the Statute of 13 Eliz. the same induces an incapacity on those that shall not subscribe the Articles, but it leaves all things else to the Ecclesiastical Law; neither the Canon nor the Statute are Derogatory from the Old Ecclesiastical Law, they both leave it in Statu quo to the Ecclesiastical Judges; no Man will pretend that these are a Repeal of the Statute of Articuli Cleri; so that the Law remained as it did with more Latitude indeed to the Bishop, but not with more favour to the Clerk.

They objected, that here was not convenient notice to the Pa­tron, and the usual pleading of it is the same day.

But surely that's well enough, and so was it held by all the Jud­ges that favoured their side in this case, and 'tis apparent, that he had above four Months time to have presented another, be­sides, the Judges declared below, that if not a convenient time, it ought to have come on their side, but they admit notice by their Replication, and insist upon his Orders as an Estoppel to say that he was Illiterate.

They pretend, That he is still under the Bishop's Jurisdiction, and that he may deprive him for the same Cause, if sufficient, af­ter Institution, but that's a great mistake; for, there may be a cause of Refusal, which is not of Deprivation, for, he may be­come Learned that was not so, and besides, the Rule is false, af­ter induction, they would then be discoursing about Freehold, &c. a Man may be refused, because non compos, but he cannot be de­prived for that Cause, though the Bishop may provide a Curate, &c.

As to the pretence of six Months notice, from the time of the Refusal, 'twas never insisted on at the Bar in C. B. or B. R. and the Judge who doubted, did only say, he was not fully satisfied with the current Opinion of the Books; his doubt arose upon this, That the cause of Refusal was not within the Partron's knowledge. Suppose the Man had not Episcopal Orders, but pretended to them, and the Patron knew nothing of the matter, should this Presentation prevent lapse, and the rest were all of another Opi­nion and the Books are full to this effect, for the Patron ought to present a Man qualified, otherwise 'tis as no Presentation, and then lapse in course. Suppose he had presented a mere laicus, 'tis [Page 103]as none; suppose he had presented a Woman, as idonea persona, 'tis as none; and these instances may seem Trivial, but our Books do mention them.

2 Roll's Abridg. 364. Kelway 49.59. 34 Hen. 7.21. 14 Hen. 7.21. and Dyer 227. and Sir Symon Degges Parson's Gounsel­lor.

Upon the whole, the Question is, whether a Court of Law shall Repeal the Statute of Articuli Cleri, whether the Plea shall be adjudged ill, which is in the very words of that Statute; when the same Fact was never pleaded otherwise, nay, when it hath been pleaded thus often times, and never excepted against till now.

Wherefore it was prayed that the Judgment might be Rever­sed.

On the other side 'twas argued, That the Bishop's Plea below, was too general, and the Plaintiffs Replication good; that his be­ing Ordained a Priest, and a Licensed Preacher is enough, that this is an Answer to the Allegation of the Minus Literatus, his being a Priest is a kind of a supersedeas to his Examination, that there was no Learning requisite to his having a Cure of Souls, which was not Antecedently necessary to his receiving of Orders: That he ought not to be admitted into Orders, unless he be assured of or named to some Curacy, all which, supposes the Qualifications Requisite for a Benefice with Cure of Souls; then 'twas urged, that here was not notice sufficient, for 'tis not till many days after the Refusal, for this might have put Hele the Patron beyond the possibility 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 'tis a legal cause of Refusal. He is not a Judge, whether Hodder's insufficiency in any one point of Learning be a [Page 104]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 'tis 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, 'twas 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 'twas 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 [Page 105]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, that this was never designed to take effect as an use to be vested immediately, and it was no more then if the Deed had declared the use to be after the expiration [Page 106]of twenty Years, or at other future time, to the Heirs of the Body of William Horne, and for default of such Issue, to his right Heirs, and that such time had happened, the use would have ve­sted in the Heirs of his Body, or in his right Heirs, if he had Died before that time: That 'tis true, there must be a person ca­pable of taking at the time when the Contingency happens, and so there was here, at the time of his Death; That it could ne­ver be intended that the Heirs should take immediately, for that then there was no such person in being, there could be no Heirs during his Life: That this was like the Case of Webb, and Sir Caesar Cranmer, where the Trust of the Estate during the Life of the Duke of Southampton, was adjudged to remain in the Heirs of the Devisor; the Duke himself not being capable to take it; That here being no person able to take under this Deed and Fine during the Husband's Life, it shall be construed to remain as it was before, till that Life ends, and then the use ought to take ef­fect: for otherwise, both the Deed and Fine are to no purpose, they are all in vain, and the intent of the parties to it is defeated. And there were Cited the Lord Paget's Case, in 1 Anderson, and Woodlett, and Denny, 2 Crook 439. and 1 Leon 256.

On the other side, it was argued with the Judgment, that this Deed and Fine can raise no use, to the Heirs of the Husband, ac­cording to the Rules of Law. It was insisted, That if Husband and Wise do levy a fine of the Wife's Land, and no uses are de­clared, or such uses are declared, as are void and can never take effect; such Fine is to the use of the Wife and her Heirs, that in such case the Estate remins' as it was, or if the Fine Operates any thing it shall be for the benefit of the party to whom it did belong before.

Then it was urged, That this was designed to raise an use im­mediately to the Heirs of the, &c. and that there was no person capable of taking at the time of levying this Fine, the common Maxim in the Law proving it, quod nemo est heres Viventis; that the name and nature of an Heir import a successor after Death, that this being designed to raise an use, ex presenti, and no person being capable of taking at that time, the same must be void: That this is the case of a Deed, executed in the Life-time of the parties, and not a Will, where large allowances are often made in favour of supposed intentions, by reason that persons are often surprized by Sickness, and presumed to want the assistance of Counsel, but the Rules of Law are always allowed to govern in Construction of Deeds. Then it was urged, that nothing was ever designed to the Husband himself by this; that no words in the Deed can favour such a presumption, that this must either work as an Estate in present, or by way of remainder; if the latter then by the known Rules of Law, there must be a particular Estate to support it, and such particular Estate must be either expressed or implied; here is none expressed, and if implied, it must be in the Wife, and if in her, then she dying before the Husband, her [Page 107]particular Estate did determine before the remainder could take place, and consequently by all the Rules of Law, it can never take place; and no particular Estate can be implied, in or for the Husband, for that there is nothing said shewing such intent, and if the Construction of Law be to prevail, then as was urged before, that is in favour of the Wife. But here, it was plain­ly designed to take effect immediately, and therefore void, be­cause there was no person in being, capable of taking at the time the Estate was intended to vest, and no uses are to be executed by the State, which are limitted against the Rules of the Com­mon-Law, Chudleigh's Case, 1 Rep. 129. if the limitation of an use be at this day to A. for Years, and afterwards to the use of the Heirs or Wife of B. which shall be, this is void, because 'twould have been void, if limitted, in possession, Dyer 190. the Earl of Bedford's Case in Popham, 3, 4. and 82. resolved in like manner to be void, because would have been so in an Estate con­veyed at Common-Law: And, all that can be objected, is, that then this is all void, which is no more than may be pretended upon every imperfect conveyance, but here the Case is in a Court of Law, and the Defendant is a Purchaser who hath been Thirty Years in Possession, tho' that doth not appear in the Case.

And it was said, That as to the Notion of a springing con­tingent use, 'tis hardly intelligible in it self, and by no means ap­plicable to this Case, because here are no words in this Deed, that carry any relation to a future time or Contingency, and the Objection is only this, That the Conveyancer was mistaken in his Judgment, or that the parties knew not what they meant, or that they meant to create such an Estate, and in such a manner, as the Law will not allow; and neither of these are Reasons sufficient to prevail for the Reversing of a Judgment given according to the Rules of Law, by which Men's Inheritances have all along been governed, and upon which, many Estates do now de­pend.

'Twas further urged, That the contrary Opinion, which must be advanced to annul this Judgment, would reder the Law and Men's Conveyances, as doubtful and uncertain as last Wills and Testa­ments, and submit Men's Titles to the Arbitrary Power and Will of those that shall Judge of them; It is to impower them to sup­pose intentions where not expressed, and to raise uses by Implica­tion, where they were never designed: And in short, 'twill de­stroy all the difference between good and bad Conveyances, and enable Men to limit uses and raise Estates contrary to, and in dif­ferent manner from what the Law hath hitherto allowed; it will render Purchases more uncertain than they are at present, and that's more than enough already, and the consequence must be to produce a confusion in property, &c. wherefore, upon the whole, it was prayed, That the Judgment might be affirmed, and it was affirmed accordingly.

Watts & al' versus Crooke.

APpeal from a Decree in Chancery: The Case in short was this; That Peter Crooke and Elizabeth his Wife, who was Sister of the half Blood to George Watts, claimed to have an equal share with John Watts and Elizabeth Camfield, who were Brother and Sister of the whole Blood to the Deceased, of his Personal E­state; and a Decree was made in Chancery in favour of Crooke and his Wife.

It was argued on 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, 'twas held that a Sister of the half Blood is in equal degree with the whole, Brown versus Wood, Allen's Rep. 36. [Page 109]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 'twas 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 'tis enacted, That if after the Death of the Fa­ther, any of his Children shall die intestate, without Wife or Chil­dren, [Page 110]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 over­ruled 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 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, 'twas 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, 'twas 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 [Page 115]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, 'tis 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 'tis 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 'tis asserted therein, That the Plaintiff's Counsel did show that this Office was of the Gift and Grant of the King, when­soever it should be void; whereas there was no such Evidence to show any such Right in the King offered, or pretended to, besides the Patent in question, and the Act of Edw. 3.

2. That the Judges refused to allow, admit, and receive the Allegations and Matters given in Evidence for the Plaintiff, as sufficient to maintain his Title; whereas they were given in Evi­dence and considered; and if it be meant, as a sufficient Evidence to controul and over-rule all other, that doth not belong to the Court in Trials to determine, unless referred to them upon demurrer to Evidence, but is the proper business of the Jury; and if the Par­ty be aggrieved, the Remedy is an Attaint. Nor can it be pretended that the Defendants Evidence was admitted to over-rule the Record [Page 116]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, 'tis 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 [Page 117]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, 'twas 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 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.

'Twas 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 Court. If such Bill be tendred, and the Exceptions in it are truly stated, then the Judges ought to set their Seal, in testi­mony that such Exceptions were taken at the Trial: But if the Bill contain Matters false or untruly stated, or Matters wherein they were not over-ruled, then they are not obliged to affix the Seal; for that would be to command them to attest a falsity; a Bill is not to draw the whole Matter into Examination again; 'tis only for a single point; and the truth of it can never be doubted after the Bill is sealed; for the adverse Party is conclu­ded from averring the contrary, or supplying an Omission in it.

This Bill was without Foundation; the Plaintiff was not over­ruled in any one Point of Law: 'Tis true, the Counsel desired the Opinion of the Court after all the Defendant's Evidence had been heard, concerning their Record, and the Judges did de­clare, that they thought it did not extend to the Office in questi­on, but to the Clerk of the Crown, who is the chief Clerk in Court, and hath precedency; and the Grant of that Office by the King, both before and since that supposed Act, proves that to be meant, and not the Office in question, which hath always been granted by the Chief Justice: and this was afterwards left to the Jury. Here was no cause for a Bill of Exceptions, the Judges at the Coun­sels desire gave their Opinion upon the thing, but did not over­rule them; for that the Act being repealed, could make no Point of Law, but only be Evidence for the Jury to consider.

Besides, this Act, tho' repealed, is inserted in the Bill as an Act in force; And if an Act be set out, and no repeal appears, it must be understood to be in force; and if the Bill had been seal­ed, it must have been taken as in force, and the Defendants could not here upon the Writ of Error have shewn the repeal, which was in the 17 Edw. 3. and appeared so upon the Evidence; from whence 'twas inferred, That this Bill was too artificial. If any point of Law had arisen upon the whole Evidence (and a parti­cular point there was none) the whole ought to have been in­serted in the Bill, or at least all that which concerned that Mat­ter.

If this should be allowed, 'twould be in the power of any Counsel to destroy any Verdict; as in case of a Title by Descent from Father to Son, and a Will of the Father had been produced and proved at the Trial, and a Bill had been sealed, only shewing the Seisin and Descent, the Son must prevail, tho' he had no Ti­tle. This is enough to shew that the Judges are not obliged; nay, are obliged, not to Seal this Bill.

Then it was argued, That the present Complaint is beneath the Honour, and besides the Jurisdiction of the House of Peers; that this was a Complaint of a Default in the Judges, which cannot be tried in this place; that MagnaCharta was made for them as well as for others; that if they offend against any Rule of the Common Law, or particular Statute, whether in their Personal behaviour, or as Judges, they are triable only by their Peers; that Peers are only such qui pari conditione & lege vivunt; that the Crown and Consti­tution of England had so far exalted their Lordships in their State and Condition, that 'tis beneath them to judge or try Commo­ners; that all Powers and Priviledges in this Kingdom, even the highest, are circumscrib'd by the Law, and have their limits: That this is a Complaint of a great Crime in the Judges, a Breach of their Oaths, and with the insinuation of Partiality to one of themselves; which if true, incurs loss of their Offices, and Forfeiture of their Estates by Fine, and of their Liberty by Imprisonment; and all this to the King; besides Damages to the Party grieved; and therefore it concerns them to have the benefit of the Law.

That this comes not regularly into the House; 'tis not any mat­ter of Advice to the King, nor of Priviledge, nor of Contempt to this Court, because the Matter complained of was before any Judgment below, or any Jurisdiction could be attached here, by pretence of the Writ of Error. 'Tis brought hither by way of Complaint for a supposed Miscarriage in Westminster-hall, in a pri­vate Cause between Bridgman and Holt, two Commoners: It pre­sumes the Lords to be proper Judges in the first Instance, for the hearing and punishing of all Offences committed by the Judges, and that in a Summary way upon a Petition, and without that due Process of Law, which is established under our Government.

Either this Refusal is punishable, or not; If not, the Petition ought to be rejected: If it be, 'tis either by the Common Law, or by Act of Parliament; but neither do warrant this Practise of Pe­titioning; and the old Law is that, which past Ages have appro­ved, and that by which Justice is to be administred; and what­soever is done by way of Judgment in a different manner than the Law allows, is against that Law.

The proceeding in this manner is against the Consent of the Respondents, for they have Pleaded to the Jurisdiction of this House as to this matter, &c. and therefore it differs from all Ca­ses, where the Parties concerned have Answered the Complaint, and thereby submitted the same to an Examination; and this will prevent the force of many presidents which may be Cited on this occasion. Some Persons perhaps have from a confidence of Suc­cess, or from a slavish Fear, or private Policy, forborn to Questi­on the Power of their Superiors; but the Judges must betray their Reputation and their Knowledge of the Laws, if they should own a Jurisdiction, which former times and their Predecessors were unacquainted with.

'Tis necessary to answer the pretence of a failure of Justice, in case this method be Rejected; and therefore it must be observed, That our Law knows nothing of extraordinary means to redress a Mischief, but that upon a defect of ordinary ones, recourse is to be had to the Legislature, and to that only, either to explain and correct in reference to things past, or to provide remedies for the future. But here is a common easie means of relief, if there had been occasion.

By the Statute of Westminster, 2 cap. 31. In case the Judge re­fuses, then a Writ to Command him, which is to issue out of Chancery, quod apponat sigillum suum; and then a Writ to own or deny his Seal.

By 2 Inst. 426. the party grieved by the denial, may have a Writ upon the Statute, Commanding the same to be done, juxta formam Statuti, Reg. 182. Fitch. Natura brevium, 21. and 11 Hen. 4.51, 62, 63. there's the form of the Writ set out at large. It recites a surmise of an Exception taken and over-ruled, and it follows vobis precipimus, quod si ita est, tunc sigilla vestra appona­tis. Si ita, 'tis conditional, if the Bill be true and duly tender­ed, then this Writ, and if it be returned, quod non ita est, then an Action for a false return, and thereupon the surmise will be tri­ed, and if found to be so, Damages, and upon such a Recovery, a peremptory Writ Commanding the same; that the Law is thus, seems plain; tho' no precedent can be shewn of such a Writ 'tis only for this Reason, because no Judge did ever refuse to Seal a Bill of Exceptions, and none was ever refused, because none was ever tendred like to this, so artificial and groundless: But that such Actions lie upon this Statute, were Cited Regist. 174. Nat. Br. 10. and they are called Attachments, and Dama­ges shall be to the Party and a Fine to the King; so it is in all Cases of Statute Laws, which do either prohibit or Command the [Page 123]doing of a thing for the advantage of any person, such person, if injured by a disobedience to that Law is intitled to an Action, tho' the Statute doth not in express words give one. 2 Inst. 55.74.118.131. and the same holds in judicial proceedings, the Case of the Marshalseas, 10 Rep. 75. 4 Edw. 4.37. and the same Reason warrants the Action for a Scandal' Magnat': But perhaps 'twill be said, that tho' an Action lies for a disobedience to this Writ, yet the Writ not being returnable, no Action lies for a false return, and consequently no peremptory Writ, and by consequence there's no adequate remedy in case of an unjust Re­fusal; but to this it may be answered, That the Writ being Con­ditional, 'tis a good Answer to it, that the Fact was not as is sur­mised, and that return will justifie the Refusal: And certainly such return may be made; and if not, when the first Writ is proved to be true in all its Suggestions, by Judgment in an Acti­on for not obeying it, the same Reason will warrant a perempto­ry Writ; But whether this be thus, or not, it only argues an im­perfection in the Law, proper for the notice of the Legislature, and will not justifie the method of proceeding, now attempted here in this place.

It hath been Objected, That such Proceedings are not like to be successful, because Judges still are to try those matters; but these are Reflections not Arguments, and our Constitution is foun­ded on a Notion, that parity of Condition is the best Qualifica­tion of a trier; and here must be a Jury to try the Fact, and they are subject to an Attaint, if their Verdict contradict the Evi­dence: And no direction of a Judge can excuse them, for if it be a point of Law, they are not oblig'd to find a special Verdict, but may find a general one upon their own peril of an Attaint. Then.

Either this is designed as a Criminal proceeding against the Judges, in order to Punishment, or as a Civil proceeding, for to gain Damages to the Party, or else neither one nor the other, but to have an Order Commanding the thing to be done; which if refused, then to have them compelled by Imprisonment, quo­usque, &c. neither of the first are pretended; and the last is not a Warrantble method, when the Law hath prescribed a Writ in Chancery, and that's not prosecuted.

Here cannot be tried the particular requisites to ground such an Order as they desire, as whether the Evidence or Exception as stated, was offered at the Trial, or if offered, whether 'twas o­ver-ruled, nor whether the matter offered were believed, for if not believed, it makes no Evidence, and so can raise no point in Law; There can be no Jury impanelled to try this, nor can an Is­sue be directed hence for the trial of it.

By this means, the Judges lose the benefit of that legal Trial, by a Jury of their Peers, which is their fence and protection a­gainst Power, Art, or Surprize; the best for indifference and dis­covery of Truth. The Institution of the Law is cautions and wise in its provision for both. Challenges are admitted below; [Page 124]'tis derogatory to the Honour of this Court, to suppose it necessa­ry here; but to have it in Westminster-Hall, is however reckoned a Commoner's priviledge and Birth-right; there the Law is de­termined by one, and the Fact is ascertained by another; here both are in the same hands: Not that any Jealousie can be sup­posed of mischief by it in this House, but the practice of it now may give president to future Reigns and Ages, in which there may be danger of a partiality.

Below, there are by the Law appointed and provided particular Terms and days for doing Justice, and they are certain, the di­stances between them are known, according to the nature of the Suit; which capacitates the parties concerned, their Agents and Witnesses, to be ready, and there can be no surprize.

It must not be presumed, That this House may err, but if any Error be possible, 'tis impossible for the Judges to be relieved, for these Reasons; in respect of the Court, for no Address can be made in such case, but to the same persons who did the wrong; which is always with some prejudice or disadvantage, because the party Erring is to Judge, if he himself hath Erred. Then the Proceedings here being in English and Summary, it cannot well be made appear, what was the proof in the first instance, no Record being kept thereof. Then suppose Evidence be allowed, which is none, the person against whom the same is given, is remediless; these Evils may happen in the repeating of this practise in the next Reign, tho' they cannot in the present.

Then this method is not only against the general tenor and frame of the Common-Law, but against divers Acts of Parliament and Declarations of this House.

Magna Charta, 9 Hen. 3. cap. 29. is express, per judicium pa­rium vel per legem terre, now the latter only refers to such cases which are not Triable, per jud' par': besides, to make it the lex ter­re, there must be Ancient and continual usage, 22 Edw. 3. numb. 30. shews that no new practice can make a Law.

By 25 Ed. 3. cap. 4. 'tis Enacted, That no Man shall be taken by Petition or Suggestion to the King, or to his Counsel, with­out Presentment, or by process or Writ Original at Common-Law, and that none shall be put out of his Franchise or Freehold, but by due course of Law before used; here the one explains the other; by Writ or due course of Law are taken for the same thing, and both used in contradistinction to Petition; the 28 Ed. 3. cap. 3. is the same.

Then the 42 Edw. 3. cap. 3. 'tis by due process and Original Writ according to the Old Law of the Land; the 1 Rich. 2. numb. 87. Cott. 162. no Suit to be determined before the Lords or before the Counsel, but before the Justices only.

But the 4 Hen. 4. cap. 23. is fuller, it recites, That in Pleas as well real as personal in the King's Courts, the parties be made to come upon grievous pain, sometimes before the King himself, sometimes before the King's Council, sometimes to the Parlia­ment, [Page 125]to answer thereof anew to the grievance of the Parties, and in Subversion of the Common-Law of the Land, 'tis 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; 'tis a Declaration of the Lords, nay, 'tis 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; 'tis in Cotton, 28.33. and, 'tis 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. 'Tis 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, [Page 126]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 'tis 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, 'tis 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, 'twould 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, 'tis 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 [Page 127]Parliament, and in that Case Stone would not agree to it, but ad­hered to the Law according to his Opinion, 'tis 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 before the Ju­stices. But there's no President to warrant this Petition, and therefore 'twas prayed, that the Petition might be Dismissed... ..................... .....................

And afterwards.............. .....................

Dominus Rex Versus Walcott.

WRit of Error to Reverse a Reversal in B. R. of an Attain­der for Treason, before Commissioners, &c. at the Old-Baily, against Walcott; the Record was thus, Gulielmus Tertius, Dei Gratia Angliae, Scotiae, Franciae, & Hiberniae, Rex, fidei Defensor, &c. dilect & fideli nostro Johi Holt, Militi Capitali justiciario nostro ad placita coram nobis tenend' assign' salutem Quia in Recordo & Processu ac etiam in redditione Judicii cujusdam Indictamenti versus Tho­mam Walcott, nuper de London Generosum modo defunct' pro qui­busdam altis perditionibus personam Domini Caroli Secundi nuper Re­gis Angliae tangent' modo indictat fuit & superinde per quand' Jur superinde int' prefat' nuper Regem & prefat' Thomam Walcott, capt' coram Justic' dict' nuper Regis ad Goalam Deliberand' assign' convict' exist' & Judicium superinde reddit' fuit pro prefat' nuper Rege versus prefat' Thomam Walcott, ut dicitur, quae quidem Re­cordum & Processum predict' causa erroris intervenient' in Curia no­stra coram nobis venire fecimus & Judicium inde in eadem curia nostra coram nobis reversatur & quia in reversatione Judicii pre­dict' coram nobis super bre' de Error' predict' Erro intervenit mani­festus ad grave Dampnum cujusdam Isabellae Dillon Viduae Comitis­se Roscomon nuper Uxoris Wentworth Dillon armig' nuper Comi­tis Roscomon in Regno nostro Hibernico sicut ex quaerela, sua accepi­mus. [Page 128]Nos Errorem siquis fuerit modo debito corrigi, & eidem Isa­bellae plenam & celerem Justiciam fieri volentes in hac parte.

Vobis mandamus quod si Judicium super Breve de Errore praedict' reversat' sit, tum Recordum & Processum praedicta cum omnibus ea tan­gent' nobis in Parliamentum nostrum ad proximam Sessionem vicessi­mo octavo die instantis Mensis Julij tenend' distincte & aperte mit­tatis & hoc Breve ut inspect' Record' & Processu praedictis ulterius in­de de assensu Dominorum Spritualium & Temporalium in eodem Par­liamento existent' pro Errore illo corrigend' Fieri Fac' quod de Jure & secundum Legem & consuetudinem Regni nostri Angliae fuerit fa­ciend'. Teste Thoma Archiepiscopo Cantuar' & ceteris, Custodibus & Justiciariis Regni apud Westm' sexto die Julij anno Regni nostri octavo.

Martin.

Respons. Johannis Holt Mil' Capital' Justiciarij infra nominat'.

Record' & Process' unde infra fit mentio cum omnibus ea tangen' Domino Regi infra nominat' in presens Parliamentum propriis Manu­bus protuli in quodam Record' huic Brevi annex' prout interius mihi precipitur.

J. Holt.

Placita coram Domino Rege apud Westm' de Termino Paschae Anno Regni Domini Willielmi Tertij nunc Regis Angliae &c. septimo. Rot. 3.

London ss. Dominus Rex mandavit Justic' suis per Literas suas Patentes sub magno Sigillo ad inquirend' per Sacrum proborum & legalium hominum Civitat' London ac aliis viis modis & mediis qui­bus melius sciverint aut poterint de quibuscunque Perdition' Mispri­sion' Prodition' Insurrection' Rebellion' & ab Malefact is Offensam & Injur' quibuscunque necnon Justic' suis ad Goalam suam de Newgate per Civitat' London de Prison' in eadem existen' deliberand' assign' & corum cuilibet Breve suum in haec verba.

Gulielmus tertius Dei gratia Angliae Scotiae Franciae & Hiberniae Rex Fidei Defensor' &c. Justiciar' suis per Literas suas Patentes sub magno Sigillo Angliae confect' ad inquirend' per sacrum proborum & legalium hominum Civitat' London ac aliis viis modis & mediis qui­bus melius scierint aut poterint de quibuscunque Prodition' Misprision' Prodition' Insurrection' Rebellion' & ab Malefactis Offens' & Injur' quibuscunque necnon Justic' suis ad Goalam suam de Newgate pro Civitat' London de Prisonariis in eadem existent' deliberand' assign' & corum cuilibet salutem Quia in Recordo & Processu ac etiam in redditioue judicij cujusdam Indictamenti versus Thomam Walcott nuper de London Gen' defunctum pro quibusdam altis perdition' person' Domini Caroli Secundi nuper Regis Angliae tangent' unde indictat' est & superinde per quandam Jur' Patriae inter praefat' Dominum nuper Regem & praefat' Thomam Walcott Capt. coram Justiciar' dicti Do­mini [Page 129]Caroli Secundi nuper Regis Angliae, &c. ad Goalam praedict' deliberand' assign' convict' exist' & judic' superinde reddit' sit ut di­citur Error intervenit manifestus ad grave dampnum Johannis Wal­cott Gen' filij & haered' praed' Thomae sicut ex quaerela sua accepimus Nos Errorem siquis fuit modo debito corrigi & eidem Johanni ple­nam & celerem Justiciam fieri volentes in hac parte vobis Mandamus quod si Judicium reddit' sit tunc Record' & Process' praedict' cum omnibus ea tangent' nobis sub Sigillis vestris vel un' vestrum distincte & aperte mittat' & hoc Breve ita quod ea habeamus a die Paschae in tres septiman' ubicunque tum fuerimus in Anglia ut inspect' Record' & Process' praedict' ulterius inde pro Errore illo corrigend' fieri faciamus quod de jure & secundum legem & consuetudinem Regni nostri An­gliae fuerit faciend' Teste meipso apud Westm' decimo septimo die Martij Anno Regni nostri septimo.

Executio istius Brevis patet in Schedula & Recordo huic Brevi annex'.

Respons. Thomae Lane Mil' Major' Civitat' London ac un' Justic' infrascript' Record' & Process' unde in Brevi superdict' fuit mentio sequit' in haec verba.

London ss. Memorand' quod per quandam Inquisition' Capt' pro Serenissimo Domino Rege apud Justice-Hall in the Old Baily, Lon­don, in Parochia Sancti Sepulchri in Warda de Faringdon extra London praedict' die Jovis scilicet duodecimo die Julij Anno Regni Domini nostri Caroli Secundi Dei gratia Angliae Scotiae Franciae & Hiberniae Regis Fidei Defensor' &c. tricesimo-quinto coram Wil­lielmo Prichard Mil' Majore Civitat' London, Francisco Pemberton Mil' Capitali Justic' Domini Regis de Banco, &c. ac aliis Sociis suis Justiciariis dicti Domini Regis per Literas Patent' ipsius Domini Re­gis eisdem Justiciar' praenominat' & aliis ac quibuscunque quatuor vel plur' eorum sub magno Sigillo dict' Domini Regis Angliae confect' ad inquirend' per sacrament' proborum & legalium hominum de Civ' Lon­don ac aliis viis modis & mediis quibus melius scierint aut poterint tam infra libertat' quam extra per quas rei veritas melius sciri poterit & inquir' de quibuscunque Prodition' Misprision' Prodition', &c. infra Civitat' praedict' tam infra libertat' quam extra per quoscunque & qua­litercunque habit' fact' perpetrat' sive commiss' per quos vel per que cui vel quibus quando qualit' & quomodo & de aliis articulis & circum­stant' praemissa & eorum aliquod vel aliqua qualitercunque concernen' plenius veritat' & ad eadem & al' praemissa audiend' & terminand' secundum legem & consuetudinem Regni dicti Domini Regis Angliae assignat' per sacrament' Rich' Alie Arm' & aliorum proborum & le­galium hominum Civitat' London praed' qui adtunc & ibidem Jurat' & onerat' existent' ad inquirend' pro dict' Domino Rege pro Corpore Civitat' predict' extitit' praesentat' quod Tho. Walcott nuper de Lon­don Gen' ut falsus Proditor contra illustrissimum & excellentissimum Principem Dominum nostrum Carolum Secund' Dei grat' Angliae Scotiae Franciae & Hiberniae Regem & Naturalem Dominum suum ti­morem Dei in Corde suo non habens nec debit' Ligean' suam ponder an' sed instigatione Diabolica mot' & seduct' dilectsoneret veram debitam [Page 130]& naturalem obedient' quas verus & fidelis subdit' dict' Domini Regis erga ipsum Dominum Regem gereret & de Jure gerere tenetur penitus subtrahens & totis viribus suis intenden' pacem & communem tran­quilitat' hujus Regni Angliae perturbare & guerram & rebellion' contra dictum Dominum Regem suscitare & movere & gubernat' dicti Do­mini Regis in hoc Regno Angliae subvertere & dict' Dominum Re­gem a titulo Honore & Regali nomine Coron' Imperial' Regni sui An­gliae deponere & deprivare & dictum Dominum Regem ad mortem & finalem destruction' adducere & ponere secundo die Martij Anno Regni Domini Caroli secundi nunc Regis Angliae, &c. tricessimo-quinto & diversis ab diebus & vicibus tam antea quam postea apud Parochiam Sancti Michaelis Bassieshaw in Warda de Bassieshaw London mali­tiose & proditorie cum diversis aliis proditoribus Jur' praed' ignot' con­spiravit compassavit imaginat' fuit' & intendebat dictum Dominum Regem supremum Dominum suum non solum de Regali statu titulo po­testate & Regimine Regni sui Angliae deprivare & dejicere verum eti­am eundem Dominum Regem interficere & ad mortem adducere & ponere & antiquam gubernat' hujus Regni Angliae mutare alterare & penitus subvertere ac stragem miserabilem inter subdit' dict' Domini Regis per totum Regnum suum Angliae causare & procurare ac insur­rection' & rebellion' contradict' Dominum Regem movere & suscita­re infra hoc Regnum Angliae & ad easdem nefandissimas prodition' & proditorias compassation' imagination' & proposita suà praed' perim­plend' & perficiend' idem Thomas Walcott ut falsus Proditor tunc & ibid' & diversis aliis diebus & vicibus tam antea quam postea malitiase proditorie & advisate se assemblabat conveniebat & consultabat cum praed' al' proditoribus Jur' praedict' ignot' & cum eisdem tractabat de & pro eisdem suis proditionibus & proditoriis compassation' imagination' & propositis suis prosequend' exequend' & perimplend' quodque idem Thomas Walcott ut falsus proditor malitiose proditorie & advisate tunc & ibidem & diversis ab diebus & vicibus tam antea quam postea super se assumebat & praedict' aliis proditoribus promittebat se fore anxiliant' & assistent' in execution' prodition' & proditor' compassa­tion' imagination' & proposit' sua praedict' perimplend' & per­ficlend' & easdem nefandissimas prodition' & proditor' compassation' imagination' & proposita sua praedict' perimplend' & perficiend' idem Thomas Walcott ut falsus proditor' malitiose proditorie & advisate tunc & ibidem arma videlicet [...] Anglice Blunderbusses, Bumbard' Anglice Carbines, Sclop' Anglice Pistols, & procurabat & praeparabat contra Ligeantiae suae debit' contra pacem dicti Domini nunc Coron' & Dignitat' suas, &c. necnon contra formam statut' in hujusmodi casu edit' & provis. &c. per quod praecept' fuit vid' Civitat' praedict' quod non omitt' &c. quin caperent praefat' Thomam Wal­cott si &c. ad respond' &c. & modo scilicet ad deliberation' Goalae dicti Domini Regis de Newgate tent' per Civitat' London apud Ju­stice-Hall praedict' in dicta Parochia Sancti Sepulchri in Warda de Faringdon extra London praedict' dicto die Jovis undecimo die Julij anno tricesimo quinto supradict' coram praefat' William Pritch­ard' Mil' Majore Civitat' London ac aliis Sociis suis Justiciar' dict' Domini Regis ad Goalam swam de Newgate de Prison' in ea existen' [Page 131]deliberan' assign' praefat' Justic' dicti Domini Regis prius nominat' per manus suas propere deliberaver' Indictament' praedict' hic in Cur' de Recordo in formam Juris terminand', &c. super quo ad istam eandem deliberation' Goalae dict' Domini Regis de Newgate tent' per Civitat' praedict' apud Justice-Hall praedict' dicto die Jovis duodecimo die Ju­lij anno tricesimo quinto supradict' coram praefat' Justic' ult' nominat' ven' praed' Thomas Walcott sub Custod' Dudlei North Mil' & Petri Rich Ar' Vicecom' Civitat' praedict' (in quorum Custod' ex causa & praedicta praeantea Commiss. fuit) ad Barram hic duct' in propria per­sona sua qui committitur praefat' Vic' Civitat' London, &c. & statim de praemissis praedict' in Indictament' praedict' specificat' ei superius im­posit' allocut' qualit' se vellet inde acquietari Idem Thomam Walcott dicit quod ipse non est inde culpabl' & inde de bono & malo pon' se super Patriam Ideo immediate ven' inde Jur', &c. Coram praefat' Ju­stic' ult' nominat' hic &c. & Jur' Jure illius per praefat' Vic' ad hoc impannelat' scil. &c. exact' vener' qui ad veritat' de praemiss. dicend' elect' triat' & jurat' dicunt super sacrament' suum quod praedictus Tho. Wal­cott est culpabil J de alt' prodition' praedict' in Indictament' praedict' specificat' ei superius imposit' modo & forma prout per Indictament' praedict' superius versus eam supponitur & quod idem Thomas Walcott nulla habuit bona seu catalla terras sive tenementa ad eorum notic' & super hoc statim quaesit' est de praefat' Tho. Walcott si quod pro se ha­beat vel dicere sciat quare Cur' dict' Domini Regis hic ad judicium & execution' de eo super veredict' praedict' procedere non debeat qui nihil ulterius dicit praeterquam ut prius dixerat super quo visis & per Cur' hic plene intellectis omnibus & singulis praemissis considerat' est per Cur' hic quod praed' Tho. Walcott ducatur ad Goalam dicti Domini Regis de Newgate unde venit & ibidem super Bigam penatur & ab­inde usque ad furcas de Tyburn trahatur & ibidem per Collum suspen­datur & vivens ad terram prosternatur & quod secreta membra ejus amputentur & interiora sua extra ventrem suum capiantur & in ignem ponantur & ibidem comburentur & quod caput ejus amputetur quodque corpus ejus in quat' partes dividatur ill' ponantur ubi Dominus Rex ea assignare voluit, &c. per quod praecept' fuit Vic' quod caperent eum si &c. ad satisfaciend' &c. & modo scil. die Jovis prox' post mensem Paschae isto eodem Termino coram Domino Rege nunc apud Westm' ven' qui­dem Johannes Walcott filius & haeres praedict' Thomae Walcott de­funct' de alta proditione praedict' convict' & attinct' per Benedict' Browne Attornat' suum & habit' audit' Record' praedict' super quo praed' Thomas convict' & attinct' existit' dicit quod in Record' & Process. praedict' ac etiam in redditione Judicij praedict' manifeste est Errat' in hoc vid' quod apparet' per Record' praedict' quod Judicium reddit' est pro dicto Domino nuper Rege ubi per leges hujus Regni An­gliae Judicium praedict' pro dicto Thoma Walcott reddi debuisset & in eo manifeste est errat' erratum est etiam in hoc, viz. quod Crimina in & per Indictamentum praedict' versus praedict' Thoma imposit' per Leges hujus Regni Angliae incerte dubie & nimis generalit' allegat' existunt quodque idem Indictamentum supposuit & eidem Thomae one­rat & imponit crimina diversimoda & toto genere inter se discrepan­tia 'Quodque Judicium superinde reddit' sit & existit cantrarium [Page 132]Legibus Angliae & minime pronunciand' vel imponend' pro vel super hujusmodi Crimina qual' in Indictamentum praedict' supponuntur & in eo manifeste est Errat' unde Pet' Judicium Cur' hic in praemiss' & quod Judic' & Attinctur' praedict' ab Error' praedict' & al' in Recordo & Process' praedict' compert' existent' reversetur adnulletur & penitus pro nullo habeatur & quod ipse praedict' Johannes Walcott filius & haeres praedict' Thomae ad omnia quae ipse praed' Johannes occasione Judicij & Attinctur' praedict' amisit restituatur & quod Cur' hic procedat ad examinationem tam Record' & Process' praedict' quam ma­terias superius pro Errore assign', &c. & quia Cur' dicti Domini Re­gis hic de Judicio suo de & super premissis reddend' nondum advisa­tur dies inde dat' est praefat' Johanni Walcott in statuto quo nunc &c. in Cro' Sanctae Trinitat' coram Domino Rege ubicunque, &c. de Judicio suo inde audiend' &c. ad quod quidem Crm' Sancte Trinitat' coram Domino Rege apud Westm' ven' predictus Johannes Walcott per Attornat' suum predict' & ut prius Petit Judicium & quod Judi­cium & Attinatur predict' versus predict' Thomam Walcott reddit' ab Error' predict' & al' in Recordo & Process' predict' compert' & ex­isten' reversetur adnulletur & penitus pro nullo habeatur & quod ipse predict' Johannes Walcott filius & haeres predict' Thomae ad omnia que ipse idem Johannes occasione Judicij & Attinatur predict' amisit restituatur & quod Cur' hic procedat' ad examination' tam Record' & Process' predict' quam Materiarum superius pro Errore assign' &c. And after many Continuances, 'tis entred thus: Super quo Vis. et per Cur' hic intellectis omnibus et singulis premissis diligenterque exa­minat' Record' et Process' predict' et Err' per predict' Johannem Wal­cott superius assign' et al' in Record' et Process' predict' compert' ex­isten' Maturaque deliberatione inde prius habita considerat' est quod Judicium predict' ab Error' predict' et al' in Record' et Process' predict' compert' existen' revocetur adnulletur et penitus pro nullo habeatur et quod predict' Johannes Walcott filius et heres predicti Thomae Walcott ad omnia que ipse occasione Judicij et Attinctur' predict' ami­sit restituatur et quod predict' Johannes Walcott eat inde sine die, &c. Et super hoc Johannes Trevor Miles Attorn' Domini Regis nunc Ge­neral' qui pro eodem Domino Rege in hac parte sequitur coram coram Rege ac Proceribus hujus Regni Angliae hoc predicto Parlia­mento apud Westm' in Com' Middlesex assemblat' in propria perfona sua ven' et dicit quod in Record' et Process' ac etiam in reddi­tione Judicii super predict' priori Brevi dicti Domini Regis de Erro­re corrigend' per predict' Johannem Walcott prosecut'pro revocatione et adnullatione Judicij predict' versus praedict' Thomam Walcott super Indictamentum predict' pro alta proditione predict' reddit' manifeste est Erratum in hoc, viz. quod ubi per Recordum predict' supponitur quod predict' Johannes Walcott posuit loco suo quendam Benedict' Browne Attornat' 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 [Page 133]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 'tis 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. 'tis 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, [Page 134]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, 'twas 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 'tis suggested that the Reversal was to her Damage.

Then 'twas 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 'tis 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. [Page 135]'tis 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; 'tis 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. 'tis ipsoque vivente comburentur, Pulton de Pace Regni 224. and many other Books were cited to the same effect: And 'twas 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. 'tis 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 'twas 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, 'tis 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 'tis 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 [Page 136]to Examine him, and to give Judgment in manner as in the Writ is directed, that therefore is not to be justified; and 'twas 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 'twas 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 'tis 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 'tis 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, [Page 137]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, Denbigh, and Montgomery, lea­ving three Daughters and Coheirs, Mary, Penelope, and Susan. Susan married Sidney Godolphin, one of the present Appellants. In July 1674. Mary and Penelope, in consideration of 4000 l. paid to the said Mary by Richard Carew Esq; and in consideration of a Marriage to be had, and which was afterwards had, between Pe­nelope and the said Richard Carew, by Lease and Release, convey all those their two Parts of the said Lands in Denbigh, Salop, and Montgomery, to Trustees and their Heirs, to the use of Richard Carew for Life, then to Penelope for Life for her Jointure, then to the said Trustees and their Heirs, during the Lives of Richard and Penelope, to preserve contingent Remainders; then to the first and other Sons of Richard and Penelope in Tail-Male successively: And in default of Issue-Male, to the Daughters of Richard and Penelope in Tail: And in default of such Issue, as to one Moiety of the said two Parts to the first and other Sons of the said Pene­lope by any other Husband in Tail, the Remainder of all and sin­gular the Premisses to the said Richard Carew and his Heirs for e­ver, subject to this Proviso, That if it should happen that no Issue of the said Richard, upon the Body of the said Penelope, should be living at the decease of the Survivor of them, and the Heirs of the said Penelope should within Twelve Months after the decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid, pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000 l. that then the Remainder in Fee-simple so limited, to the said Richard Carew and his Heirs should cease; and that then, and from thenceforth, the Premisses should remain to the use of the right Heirs of the said Penelope for ever.

After this Mary intermarried with the Appellant Sir Evan Lloyd, and a Partition was made of the Premisses, and the same had been enjoyed accordingly ever since, and Mr. Carew and his Lady levi­ed a Fine to Mr. Godolphin and his Lady of his part; who did [Page 138]thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts, to such uses as he and his Lady should limit and appoint, but have not yet levied the said Fine.

Richard Carew and Penelope his Wife, to avoid all Controver­sies that might happen, whereby the Estate of the said Richard Carew, or his Heirs, might be question'd or incumbred by the Heirs of Penelope; and to the End to extinguish and destroy and barr all such Estate, Right, Title, Equitable or other Interest, as the said Penelope then had, or her Issue and Heirs might have or claim to the same, by any Power, Settlement, or Condition, on pay­ment of 4000 l. or otherwise, to the Heirs of Richard Carew, by the Heirs of the said Penelope; and for the settling of the same on the said Richard Carew and his Heirs, did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them, and by Deed of 10 Decemb. 1681. declare that the said Fine should be to the use of the said Richard for Life, Remainder to Penelope for Life, the Remainder to the said Richard Carew his Heirs and Assigns for ever: And do further declare, That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife, by their Deed dated the 23 Sept. 1676. should be to the same uses, and then direct the Trustees by the first Settlement to convey to those uses.

Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Baronet, his Brother, subject to pay all his Debts and Legacies, and made Sir John Carew his Executor.

In Decemb. 1691. Richard Carew died without Issue, and Sir John Carew entred, and was seized and possessed of the Premisses, and paid 4855 l. for the Debts of Richard Carew.

Sir John Carew died, and the Respondent, Sir Richard Carew an Infant, is his Son, Heir, and Executor.

The Appellants, Mary and Susan, claiming the Lands as Heirs to Penelope, by virtue of the said Proviso in the first Settlement, upon payment of the 4000 l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such pay­ment.

Upon hearing of this Cause on Bill and Answer, the Court ordered a State of the Case to be drawn, which was as above; and afterwards the Court, assisted by the Chief Justice of the Common Pleas, and Mr. Justice Rooksby, seeing no Cause to relieve the Plaintiffs dismissed their Bill.

And now it was argued on behalf of the Appellants, That such Dismission ought to be set aside; and amongst other things, it was insisted on in favour of the Appeal, that this Proviso was not void; that it was within the reason of the Contingent Limi­tations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk, and there were quoted several Pa­ragraphs in the Argument made by the said Lord Chancellor, as [Page 139]that future Interests, springing Trusts; or Trusts Executory, Re­mainders that are to emerge or arise upon Contingency, are quite out of the Rules and Reasons of Perpetuities; nay, out of the Reason, upon which the Policy of the Law is founded in those Cases, especially if they be not of remote or long Consideration, but such as by a natural and easie Interpretation will speedily wear out, and so things come to the right Channel again: That tho' there can be no Remainders limited after a Fee-simple, yet there may be a Contingent Fee-simple arise out of the first Fee; that the ultimum quod sit, or the utmost Limitation of a Fee upon a Fee is not yet plainly determined; that tho' it be impossible to limit a Remainder of a Fee upon a Fee, yet 'tis not impossible to limit a Contingent Fee upon a Fee; that no Conveyance is ever to be set aside in Chancery, where it can be supported by a reason­able Construction, especially where 'tis a Family Settlement. Then these Paragraphs were applied; and further urged, That there could not in reason be any difference between a Contingency to happen during Life or Lives, or within one year afterwards; that the true reason of such Opinions which allowed them, if happening within the time of the Parties lives, or upon their de­ceases, was because no Inconvenience could be apprehended there­by; and the same Reason will hold to one year afterwards; and the true Rule is to fix Limits and Boundaries to such Limitations, when so made, as that they prove Inconvenient, and not other­wise: That this Limitation upon this Contingency happening, was the considerate Intention of the Family, the Circumstances whereof required Consideration, and this Settlement was the Re­sult of it, and made by good Advice: That the Fine could not barr the Benefit of this Proviso; for that the same never was, nor ever could be in Penelope, who levied the Fine.

As to the Pretence, That if the Appellants were relieved, Ri­chard Carew who married Penelope, would have no Portion with her. 'Twas 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, 'twas 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, 'twas 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 [Page 140]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, 'twas 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. [Page 141]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 [Page 142]the Lands agreed to be conveyed for a Joynture to the value of 300 l. per Annum, but did settle and convey only part, which was of the value of 250 l. per Annum, and no more, and that subject and liable to the payment of 15 l. yearly for ever to a Stranger. The said Anne dies without Issue, and Henry Bellingham was Co­sin and next Heir, Et si, &c. And Judgment was given in B. R. pro quer'.

It was argued on the behalf of Sir William Morley, That this Judgment was Erroneous; that the first Deed, and the Matter of the Joynture was nothing in the Case; that the Question was, to what uses the Fine was levied; that the Deed executed under Seal between Edward and Anne, and the Trustees, did effectually de­clare the uses of this Fine, and that the second Instrument cannot be made use of, as a Deed, to controul the former; that the first was fairly made, and all Parties requisite concurring to it. And that of the 31 Jan. was not a Deed; for a Man cannot make a Deed to his Wife, or to himself; this cannot be construed a Deed-Poll, when 'tis Indented; for that is to construe a thing different from what it is: Intent may be construed, but one Thing or sort of Instrument can never be taken for another. Then supposing it a Deed-Poll, it doth not revoke, it takes no notice of the Fine or the Deed; it hath no reference to either of them; it says that all Agreements are to be void; but how? 'tis not ab­solutely; only till a particular Thing be done: So that 'tis not a Revocation, so as to annul the Deed of the 29th: and the Hus­band by this neither did, nor could direct the use of the Fine to be to the Wife. Suppose that before the Statute of Uses, a Man had declared an Use to his Wife, it was no Trust or Use, for that no Subpena lay at the Instance of the Wife against the Husband. A Man could not be a Trustee for his Wife. Now no Use can be Executed by the Statute, but where a Subpena did lye before the Statute to compel the Injoyment according to it: And there­fore 'tis, that a Corporation could not be seized to an Use, because no Subpena; and no Subpena, because no Attachment lay against a Body Corporate. Suppose the last Deed to be any thing, 'tis only a Parol Evidence, and that will not Revoke the first Deed.

Then here's no Variance between the Fine and the Deed of the 29th: The Deed says a Fine is already acknowledg'd, and to be levied the next Hillary Term, between the same Parties, and of the same Lands: This is either the next Hillary Term after the Conu­sance of the Fine, or after the Deed: Then 'tis not usual to ac­knowledge a Fine, and levy it an Year after; 'tis not allowable in Practise, and therefore 'tis not to be so Expounded; for Men are to be intended to act reasonably, and according to Common Usage. Now 'tis true, it doth not appear when the Caption was, whether in or before the Term; yet common Intendment must carry it, that the Caption was before the Term, and so 'twas to be a Fine of that Term, or to be in or before the next Hillary; the Parties designed not, the Fine should lye for one whole Year: [Page 143]If it had been in or before, it had been well enough; then, tho' those words are not in, it is plain that the Intent was so: The Earl of Rutland's Case, was upon Evidence, and not upon Pleading. If levied before the time, that is well; the next Hillary Term, is no more, then on or before; or in Hillary next at the furthest, or by Hillary Term next: These all do sound much to the same purpose in common Understanding. The End of a good Con­struction is to supply the Defects of Expression; Then taking it for the next Hillary Term after that Term. If I do a thing before the time, 'tis done in pursuance of the Intent; for the Day given is for the Advantage of the Party who hath Liberty given to forbear the Act during all that space, till the last Day of the time given; but if he doth it sooner, the End is fulfilled; so Payment before is always reckoned as Payment at the Day: And 'tis so in all Cases, where the Time is not in the most considerable part of the Agree­ment, as in Harvest, in Winter, or the like; and the Nature of the Act is such, that 'tis most convenient for the Obligee or Co­venantee to have it at that Season, and not before: In the Earl of Rutland's Case, 'tis agreed if within the time, 'tis good. Will any Man say that this is not the Fine which was meant? If a Covenant be to make a Feoffment in Trinity Term next, such a Feoffment be­fore fulfils the Covenant: This is not a Fine acknowledg'd by any other Parties, of any other Lands, or upon any other Agreement. Suppose a Man had a power of Revocation by Deed under Seal with Witnesses, and had covenanted in such manner to levy a Fine before this Day Twelve-month, and before the Day he had levied a Fine; now the Deed was no Revocation, because not Ex­press, and of it self made no Alteration in the Estate; and the Fine of it self was not, because not by Deed attested; but both together make a Revocation; they are but one Conveyance, as was adjudged in the two Cases of Wigson and Garret, and Herring and Brown; Should not this have been a Revocation? Either this first was designed to deceive the Wife, or the second was de­signed to deceive Creditors and Mortgagees; the Creditor is to be preferred. Suppose the first were made, as 'tis most likely to en­able him to borrow Money. 'twould be hard to construe the se­cond good: Would any Purchasor have doubted this Title, if he had seen the Fine and this Deed of the 29th? To allow this se­cond, is to Countenance a Practise which may deceive any Man; for a Deed precedent leading the Uses of a Fine, is binding, and concludes against any Thing but an intermediate Deed between that and the Fine; and such private Agreement between Husband and Wife, may be had and pretended in any Case whatsoever. Then was cited Havergill and Hare, 2 Rolls 799. And 'twas fur­ther said, that against a Mortgagee the second will be void, ac­cording to Proger's Case, 1 Sid. 133. A Conveyance voluntary, that was good in its first Creation, may become void by subse­quent Accidents; and in truth it was admitted below, that this second Writing was no Deed, had no more efficacy than a Parol [Page 144]Averment; and consequently the only Query can be, If this Fine be another, and different, from that which was meant and intend­ed by the Deed of the 29th: for if it be not, then Parol Averments or Agreements ought not to be admitted. Besides, this is but Evi­dence, nor proper for the Court to consider, and the Jury should have concluded specially, That if Parol Evidence, or a naked A­verment should be admitted, then they find to such Uses: But here 'tis 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. 'Twas 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 'tis 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, 'tis 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 'twas argued, That here was such a Variance as did allow of such Averment; that 'tis 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 'twas 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 [Page 145]subsequent Declaration, the Heir at Law cannot aver that 'twas 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 'twas 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, 'tis 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 'tis now penned, 'tis 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, 'tis sufficient to controul that of the 29th; for 'tis 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 [Page 146]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 'twas prayed, that the Judgment should 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 [Page 147]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 'tis 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 'tis 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 [Page 148]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 'tis 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. 'Tis 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 'tis 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; 'tis 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, 'tis an act void, and to no purpose, which is never to be intended. Then 'twas insisted on, That the bare act of making and publishing another Will, is a Revocation, [Page 149]and the finding of the Contents unknown is void: If this be not a Will, 'tis 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 'twas 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 'tis 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: 'Tis the Subject Matter of the Wills and the Repugnancy which makes the Revocation. In this very Case, in the Exche­quer, upon an English Bill, 'twas held by Hale to be no Revocati­on, 'tis 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 Ʋnton Crook, that afterwards the 20 Aug. 25 Car. 2. he being so seized did Make, Seal, and as his Deed deliver a certain Writing, purporting a Surrender of the said Lands to the said Sir Simon Leach, which Writing was prout, &c. Then they find that the said Simon Leach the Brother, non fuit compes mentis sue tempore confectionis, sigilla­tionis, & deliberationis scripti illius, &c. That afterwards, viz. 10 Nov. 25 Car. 2. the said Simon the Brother had Issue of his Body, on the Body of the said Anne his Wife Charles Leach; that the said Simon died, and Charles Leach the Lessor of the Plaintiff is eldest Son and Heir of the said Simon, &c. Et si videbitur Cur' quod, &c. Upon this Verdict there was Judgment for the Plaintiff.

And now it was argued, That the said Judgment was Errone­ous; and said that in the Case there were two Queries, 1. If this were a good Surrender, there being no Acceptance or Agreement by Sir Simon before the Birth of the first Son, Charles: But this was not insisted on before, and therefore waived here, the same ha­ving been adjudged by the Lords to be a good Surrender, even to an Infant without Acceptance, in another Action between the same Parties, which you may see reported in 2 Ventris 198, 208. Then it was argued on the second Query, That the Lessor of the Plaintiff in the Ejectment, being a Remainder Man in Tail, cannot take any Advantage of his Father's Lunacy: That in this Case he could claim no Title, as Heir at Law, to his Father or Uncle, because of the intermediate Remainder to the Defendant in Tail; so that quoad this Estate, he is as a meer Stranger, and not as Heir; and tho' he were able to avoid it by Writ, or the like, yet it being once good, the particular Estate of Simon the Father of Charles was determined, before the Contingent Remain­der to the first Son could take place, and consequently it can never after revive. Then the Question is, Whether this Surren­der by a Non compos, being an act done by himself, and not by Attorney, be void or only voidable: There's no express Case that a Surrender, by one who is Non compos to him in Remain­der, is void. Perhaps 'twill be said, as it hath been, That the Acts of a Madman are meer Nullities by all Laws in the World. But to this 'tis an Answer, That the Laws of England have made good and honest Provisions for them, so as to avoid their Acts for the Benefit of the Party, of the King and of the Heir. But it was repeated, that this was a Contingent Remainder, and if it could not vest when the particular Estate did determine, whether by Death or Surrender, it never could vest at all; for a future Right to defeat the Surrender, as Heir, cannot support such a Contingency; a present right of Entry would; but if no such present right, the Remainder is gone for ever; and here was no such in Charles. If Tenant for Life make a Feoffment with condition of Re-entry, the Contingent Remainder shall never arise again, tho' the Con­dition be broken, and a Re-entry were made. So is the Case of Purefoy versus Rogers, 2 Saund. 380. Wigg versus Villers, 2 Rolls Abridg. 796. and then Charles cannot avoid this Deed; for the a­voiding of a Deed, is to take somewhat out of the way, in order to the revesting of somewhat; but here was nothing to work up­on; for if the Surrender were good for a Moment, the particular Estate for Life was once gone, and consequently for ever; and this must hold, unless the Act were totally void.

Then 'twas argued, That during the Life of the Party, 'twas only voidable for the King by Office; no Man can Stultifie him­self; and so is the great Resolution in Beverly's Case, 4 Rep. and 1 Inst. 247. and Whittingham's Case, 8 Rep. and if it be not void as to himself, it cannot be void as to others. And tho' Fitzh. in his N. B. says that he himself may have a dum non fuit compos, that is not agreeable to the received Law; for Beverly's Case was never [Page 152]shaken till now; and Fitzh. supposes it only voidable, by saying that Writ doth lye. There is also a Reason for this Rule of Law, that a Man shall not disable himself by pretence of Distraction, be­cause if the Pretence were true, he had no memory, and consequently could not know or remember that he did such an Act, and therefore 'tis, as it were, impossible for him to be able to say that he was so di­stracted when he did it: 'tis for him to say what 'tis not possible for him to know: But they would compare this to the Case of an Infant, yet even there all his Acts are not void; his Bond is only avoida­ble; he cannot plead that 'tis not his Deed: 'Tis true, that Acts apparently to his prejudice cannot be good, as 1 Cro. 502. Suppose a Non compos Signs, Seals, and Delivers such a Deed, and after reco­vers his Senses, and agrees to it, would not this be a good Sur­render from the first, Perkins sect. 23. 1 Inst. 2. and if it can be made good by a subsequent Agreement, 'twas not totally void, and if not totally void, 'tis with the Plaintiff in Error: The Law besides is very tender in case of Freeholds, to make Con­veyances void by bare Averments; and this would be of danger­ous Consequence, if when there was no Inquisition or Commis­sion of Lunacy during Life, that thirty or forty years after a Con­veyance, it should be in the power of a Stranger to say, that the Vendor was mad; 'twill make Purchasors unsafe: Acts solemnly done, ought to have a solemn Avoidance. The 1 Hen. 5. cap. 5. Fine to be void; 'tis void as a Bar, but yet it makes a Disconti­nuance, and must be solemnly avoided. Lincoln Colledge Case, 3 Rep. Stroud and Marshal, 3 Cro. 398. Dett sur Oblig' The De­fendant pleads that at the time, he was of non sane memory, and on demurrer adjudged no Plea; and the Opinion of Fitzh. held not to be Law. And 3 Cro. 622. 50 Assis. 2. Fitzh. Issue 53. a Re­lease by a Non compos, which is much the same with a Surrender, only one works upwards, and the other downwards; and after Recovery the Party agrees to it, the same is binding, 39 Hen. 6.42. and 49 Edw. 3.13. Then was mentioned the Provision of the Law in these Cases, besides the Care of the Court of Chancery, which protects the weak and unwary by Rules of Equity. There's a Writ de Ideota Inquirend', and the express direction of the Writ is to enquire quas terras alienavit, which shews that 'tis not void. The Statute of Prerogativa Regis, is express Authority for it; the Reason given is, that such Persons Lands should not be aliened to their hurt or the King's. It must be agreed, that before Office found the King cannot avoid the Alienation, even of an Ideot: and then after Office, the Practise is to Issue a Scire facias to him in possession, or to the Alienee; and so is Fitzh. tit. Scire facias pl. 2. 106. All these Methods prescribed by the Law would be useless, if the Acts themselves were void: Then 'tis as certain, that the Office must be found during the Parties Life, and during the insanity, and not afterwards. If there had been an Office, 'twould only avoid it with a prospect, as it would be in case of an Heir after death: Even after an Office, the King cannot have the Profits from the time of the Alienation, which shews it not [Page 153]it not void from the beginning. If a Suit be against an Ideot after Inquisition, the Ideot cannot plead it, but the King shall send a Supersedeas to the Judges, suggesting the Inquisition; so that even then the Party himself cannot avoid it.

As to the other way of avoiding it by the Heir, it must be by Writ or Entry; and till Entry or Writ the Act remains good. But here's no Contest with the Party himself, or with his Heirs, but with a Remainder Man. This Act of Surrender was no tortious Act, it wrought no discontinuance: there was no Trust in him to preserve the Contingent Remainder: A Feoffment with livery is allowed not to be void, and yet that may do a wrong by discon­tinuance, &c. As to the pretence that a Warrant of Attorney to make livery is void, that doth not reach this Case; for here's an Act done by himself, which would have passed the Estate as by and from himself, if he had been of sound Mind.

Then 'twas desired that the other side would shew any such Case as this, whereas multitudes of Gifts, Grants, Releases, Bonds, and other Specialties, sealed and delivered by the Party himself, are allowed to be good; and the same reason holds for a Surren­der made in Person; and there's no difference between a livery made in Person and a Surrender; the Act being Personal, and not by another under his Authority, makes the livery good; and so it ought to be here: 18 Ed. 4.2. Perkins sect. 139. And 'tis obser­vable in 39 Hen. 6.42. per Priscott, upon the Inquisition, 'tis re­seized and revested into the Interest of the Ideot, and consequent­ly of the King: and if revested, 'twas once out of him. Now here's no prejudice to the Man himself by this Opinion; he is ta­ken care of, and his Acts avoided by the King on his behalf; and his Heirs may avoid them: But that Strangers should take notice of them as void, was denied; and therefore prayed that the Judg­ment should be reversed.

On the other side it was argued with the Judgment, That this never was a Surrender; that 'twas against sense and reason, to al­low the Acts of a Madman, a Person distracted, to be valid to any purpose; that in case of livery it had been allowed to be only voidable, by reason of the solemnity and notoriety of the thing; but in case of a Deed, or a Thing passing only by Deed, 'twas otherwise; and Bracton, Britton, Fleta, and the Register were cited, where 'tis declared who can take, and who can alien, and that a Madman cannot alien; and Fitzh. is of Opinion, that the Writ of dum non fuit compos may be brought by himself; that there was a notion scattered in the Books, that such Acts are only voidable; but the reason of the Law is otherwise. 39 Hen. 6.42. hath the distinction; that Feoffment with livery is good, but if livery be by Warrant of Attorney, 'tis void: If it be a Feoffment with Warranty by Deed, and possession delivered with his own hands, yet the war­ranty is void, because the Deed is void. Perk. 5. The Deed of a Mad­man is void: if he grants a Rent, 'tis void. If an Infant makes a War­rant of Attorney, 'tis void; so is Whittingham's Case: A Deed and a Will are not to be distinguished; and by the same reason that the one is void, the other is so. Finch. 102. is general; All Deeds [Page 154]of a Man of non sane memorie are null: 12 Rep. Shulter's Case, 'Tis an offence to procure a Deed from him. The Civil Law makes all his Acts, which he doth without consent of his Curator, to be void: A Madman is taken pro absente: 'Tis a Rule unaccounta­ble, That a Man shall not stuitifie himself; that he shall not be a­ble to excuse himself by the Visitation of Heaven, when he may plead Duress from Men, to avoid his own Act. 'Tis absurd to say, That a Deed procured from a Man in a Fever, or in Bethlehem, shall be valid to any purpose. Fitzherbert, who was a good Lawyer, ridicules the pretence, and maintains, That he himself may avoid such Act. Then were cited 2 Inst. 14. Lloyd and Gregory, 1 Cro. 501, 502. Perkins tit. Grant. 13. Then it was said, That in this Case there needs not much Argument, the Reason of the Thing exposes the pretended Law. And the Judges have declared that this Surrender is void; the word amens or demens, im­ply that the Man hath no Mind, and consequently could make no Conveyance. Wherefore 'twas prayed that the Judgment should be affirmed; and without much debate it was accordingly affirmed.

Henry Earl of Lincoln by Susanna Countess of Lincoln his Mother, and Procheine Amye Appellant, Versus Samuel Roll Esq; Vere Booth, Hugh Fortescue Esq; and Bridget his Wife & al' Respondents.

AApeal from a Decree of Dismission in Chancery: The Case was thus; Edward late Earl of Lincoln, who was Son and Heir of Edward, Lord Clinton, the only Son of Theophilus Earl of Lincoln deceased, being seized in Fee of the Mannors of, &c. after his Mothers decease (who is yet living) and of other Lands of a­bout 3000 l. per Annum, part of the ancient Estate of the Family. And designing that in default of Issue-Male by himself, his Estate should go with the Honour, made his Will 20 Sept. 34 Car. 2. and thereby devised the Premisses to Sir Francis Clinton for Life, Re­mainder to his first and other Sons in Tail-Male, with many Re­mainders over to such Persons in Tail-Male, to whom the Honour might descend; and directed that his Houshold Goods at ...... should remain there as Heir Loomes, to be enjoyed by the next Heir-Male, who should be Heir of Lincoln, and made the said Sir Francis, the Appellants Father, and after his Death, Earl of Lincoln, Executor. On the sixth of Novemb. 36 Car. 2. Earl Ed­ward made another Will in writing in like manner, with the alte­ration of some Personal Legacies; and afterwards in April 1686. and in Dec. 1690. did republish his Will. Then Earl Edward [Page 155]sold part to Richard Wynne Esq; for 24491 l. 3 s. 6 d. and mort­gaged the Premisses in question to him for 12200 l. Then Earl Edward by Deeds of Lease and Release, dated the 27th and 28th of April 1691. conveys his whole Estate to the Respondents Da­venport and Townsend, and their Heirs, to the use of him and his Heirs, till his then intended Marriage should take effect: And af­ter such Marriage had, then as to part, in trust for his intended Wife, and her Heirs and Assigns for ever: And as to the rest, in trust to permit the said Earl to receive the Profits during his Life; and after his decease, to sell the same for the best price, and out of the Money raised by Sale, to defray the Funeral Expences, and pay his Debts, and deliver the surplus, as he should (by his last Will and Testament in writing, attested by three Witnesses, or by ano­ther Deed in writing so attested) appoint; and for want there­of to the Executors and Administrators of the Earl; with a Pro­viso, That the said Earl, by his last will and Testament, or any other Deed in writing (to be thereafter by him made and execu­ted, and attested as aforesaid) might alter, change, determine, or make void all or any the Trusts aforesaid; and for want of such after to be made, will or deed, then in trust for the said Earl Ed­ward, his Heirs and Assigns for ever; Earl Edward died without Issue of his Body, and without Marriage.

The Appellant exhibited a Bill to have the said Deeds of Lease and Release set aside, and to have the Will executed. The Re­spondents, as Heirs, insist upon the Deeds as a Revocation; and their Heirship was thus: Theophilus Earl had Issue Edward, Ka­tharine, Arabella, and Margaret; Edward died in the Life time of Theophilus, leaving Issue Edward late Earl of Lincoln; Katharine by Sir George Booth had Issue the Respondent Veer Booth; Arabella by Robert Roll had Issue Samuel Roll; and Margaret married Hugh Buscowen, and had Issue the Respondent Bridget Fortescue. And the Court, assisted with the two Chief Justices, and Mr. Justice Powel saw no Cause to relieve the Appellant.

And now it was argued with the Appeal, That the Dismission was Erroneous, there being Cause for Relief, for that the Marriage never did take effect, nor any serious Overture or Treaty was made by the said Earl on that behalf; so as the said Earl did con­tinue, and at the time of his death was seized of the same Estate in the Premisses he had at the time of making and publishing the Will; that if at Law the Deeds of Lease and Release were in strictness a revocation of the Will, yet in Equity they ought not to be construed a Revocation of the said Will, so often and so solemnly and deliberately made and published, and upon so good a Consideration as the support of the Honour; that the said Will was the Result of the Earls continued Intentions throughout his Life, and the Deeds were only the effect of some sudden Fancy or Passion; and even by those Deeds no benefit was designed to the Respondents; for the disposition of the Surplus of what [Page 156]should be raised by the Sale, was to be to his Executor Sir F. C. the Appellants Father; and that did evidence a continued Kind­ness to him, who never had offended him, and no regard to the Respondents, who (tho' they were his Heirs general) were rela­ted only at a distance, and scarcely known by him; and very well provided for, by great Portions raised out of the Estate for their Mothers.

Then 'twas argued that this Estate was meerly an equitable one, and consequently Equity only ought to govern the disposition of it: here's no express Revocation pretended; that a Mortgage in Fee is no Revocation, for in Equity it doth not make the Estate anothers: Here is a Noble Peer, who is to sit in the Seat or Place of his Ancestors, and therefore no Presumption, Intendment or forced Implication ought to be against him or his Interest; that this was designed to take effect, in case the Marriage was had, and not otherwise; that here was no intention to revoke, but upon the Contingency of his Marriage: And there was cited Zouch and Barker's Case 1625. in the Lord Coventry's time, Chancery Rep. and the Lord Boucher's Case in Edward the Sixth's time; the Case was said to be in Dyer, left as a Query, and in 1 Rolls Abridg. And for these, and many other Reasons and Authorities urged, 'twas prayed that the Dismission should be Reversed, and the Appellant Relieved.

On the other side 'twas insisted, That tho' this was not an ex­press Revocation by the use of words declaring it to be such, yet 'twas a true, legal, and effectual Revocation; that these Deeds of Lease and Release did alter the Estate; that here 'twas for payment of Debts, as well as in consideration of the intended Marriage; that here was a manifest change of his Intention; that both Will and Deed were voluntary and inconsistent, and therefore the lat­ter must stand; that here were no Children or Creditors claiming under the Will; that tho' the Subject Matter were an equitable Interest, yet Equity ought to follow the Rules of Law; that the Law made this a good Revocation, and Equity ought to judge it the same way, unless Fraud were proved to be used in the pro­curing of the Execution of these Deeds; that the reason why a Mortgage even in Fee, is not a Revocation, is because a Mort­gage doth carry upon the face of it a Defeasance; 'tis not reckon­ed an Inheritance to the Heir of the Mortgage, but shall be Per­sonal Estate, and Assets to pay the Mortgagee's Debts. This Deed was revocable by an after Will, which shews the Party to have no regard for any former Will, nor is there any reference to the Will then in being: If a Marriage had happened, 'twould be agreed to have been a Revocation; and if so, when was the Will revoked? by what Act? by the Deed, or by the Marriage? That it was said that it certainly would have been revoked by the Deed, and conse­quently ought to be construed a Revocation, tho' no Marriage did ensue: Revocations are the same in Equity as at Law; and so was it held in the Case of the Earls of Bathe and Mountague. [Page 157]The Statute of Frauds never was thought to extend to such Revo­cations as these: Tho' Earl Edward's Intentions were once to sup­port the Honour with the Estate, yet it was always in his power to alter it: The Lease and Release passed the Equity of Redemp­tion, and consequently 'tis the same now, between the Appellant and Respondents, as if there had been no Mortgage in the Case.

'Twas further urged, That a Will is but an imperfect Convey­ance, inchoate only, and ambulatory (as the Books term it) till the death of the Party; and another Will may revoke it, and with greater reason may a Deed, which alters the Estate, and shews a change of the Intention of the Person who was Owner of it: There's no need of a Consideration to warrant the Revocation of a Will; there needs no reason to be given for it; 'tis only the Mind of the Party which both makes and revokes the Will. A Will is 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, 'tis 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, 'twill be a Revo­cation, tho' such Conveyance be not perfect to all purposes. Hodgkinson versus Wood, Cro. Car. 23. 'Tis 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 'tis not to the old use, but limited in a different manner; 'tis a qualified Fee, and to be determined upon the qualifications taking effect, and so cannot be the old Estate; and if it were, yet 'tis 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 'tis 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 [Page 159]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 'twas 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 'tis 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 in the Negative) doth amount to it, viz. that he shall continue no longer; especially when the Act recites the Mischief to be a Continuance during Life: It implies that the Clerkship of the Peace should be never granted, for a longer Interest, than the Custos had in his Office. The 3 and 4 Edw. 6. doth indeed repeal part of the 37 Hen. 8. not by express words, but by a very strong Implication, by giving the Chancellor a power to nominate the Custos: But the Office of Clerk of the Peace is not toucht by that [Page 160]of Edw. 6. and continues as settled by 37 H. 8. which is during the continuance of the Custos.

Then 'tis the new Statute, which gives the occasion of the present Dispute; and there's nothing in this Act, which can make such an Alteration in the Law, as was below contended for: The words, So long only as he shall well demean himself, are not enlarging of his Estate, but Restrictive: and whensover 'tis considered how to make a Grant for Life to be good, you must consider the power and capacity of the Grantor, and how the thing is capable of be­ing so granted; as in Case of Tenant in Tail or Fee, and each make a Lease for Life; in the latter Case, 'tis for the Life of the Lessee; and in the former, for the Life of the Tenant in Tail, because of the different Capacities of the Grantors: and so the thing it self is considerable; here's an express Statute, that saith it shall be only during the continuance of the Custos; now that Provision is to be pursued: 'Tis said, that a Grant quam diu se be­ne gesserit, is for Life; but the words themselves do not import any such thing; 'tis indeed a restrictive Condition which the Law imposes upon all Offices; for Misbehaviour in any Office, if in Fee, is a Forfeiture; but the chiefest Consideration is, if it be an Office that is capable of being granted for life; if it be so, these words may amount to a Grant for Life, as expounded by usage and the nature or capacity of the Office it self: but otherwise, if the Office be not grantable for Life, such words will not give an Estate for Life: These words seem only to be an Expression of what the Law always implieth, tho' not particularly expressed. If it operate any thing, it seems only to have reference to the power of the Grantor, as a Restirction on him, and not as an En­largement of the Estate of the Grantee, especially where by a Law in being there's an incapacity upon the very Office not to be grant­ed for life.

Then it was urged that the Statute of 37 H. 8. was not re­pealed: the 3 and 4 Edw. 6. doth not alter this Matter at all; and where it did make any Alteration, the same is expresly repealed by this last Act in question. It is a settled Rule, that if there be two Statutes, and both consistent and not contradictory, the lat­ter can never be said to repeal the former; and so is Dr. Foster's Case 11 Rep. 5, 6. so it is in Wills, Hodgkinson and Wood, Cro. Car. 23. This last Act of Will. et Mar. is consistent with the 37 H [...]n. 8. the one says, He shall continue during the time that the Custos doth remain such, so as he demean himself well: the other says, He shall enjoy his place, so song only as he demeans him­self well in it. Now take the Office to be by the 37 Hen. 8. only gran [...]able to hold during the continuance of the Custos, then sup­pose in the same Act, it should be said to hold so long only as he demean himself well; where is the inconsistency or contradicti­on? And if none, then this last Act doth not Repeal the for­mer as to this Matter. And Mr. Fox's Grant is pursuant to the Statute of Hen. 8. and Mr. Harcourt's hath no relation to it.

Then 'twas argued, That 'twas unreasonable that a Custos should have an Officer under him of anothers choice, when himself is re­sponsible for the Records which such Officer is concerned with. The primary Intent of this last Act was only to settle the Doubts about the Keepers of the Great Seal, not to alter the Estate of the Of­fice of Clerk of the Peace. The Offices of the Judges in Westminster­hall determine with the King's Life who grants them, tho 'they are granted to hold during good behaviour. In this Act, the reason of using these words, was for Caution, to advertise them that Mis­behaviour should forfeit their Places. If an Alteration of the Law had been intended, they would have said, for Life, so as he demean himself well, especially when (as was said before) he was removable for Misbehaviour by the former Laws in being. Wherefore upon the whole Matter, it was prayed that the Judg­ment might be reversed.

On the other side it was argued with the Judgment, That 'tis clear and apparent that this Act of W. & M. was made not only to sa­tisfie Doubts, and prevent Questions about the Office for the Cu­stody of the Great Seal, but to settle the manner of naming the Custos and Clerk of the Peace; and that 'tis in part introductive of a new Law; and in part a reviver of the old: But the general end was, that that Office of Clerk should be filled and executed by a learned, able, honest Person, because it concerns the Admini­stration of Justice. He is the King's Attorney in many respects; he not only writes the sense of the Justices in their Orders, but draws Indictments, and upon Traverses, he joyns Issue, as one qui pro Domino Rege in ea parte sequitur, and prays Judgment for the King in many Cases; joyns in Demurrer, when occasion requires, and is in the Sessions the same as the Clerk of the Crown is in the King's Bench. Now to accomplish this end of having a Person well qualified, and to encourage and oblige him to his good Be­haviour, it requires a Residence in the County; it enjoyns that the Person named be able; it subjects him to the Jurisdiction of the Justices, who have a daily observance of his demeanour; it gives them a power to remove him upon a just Complaint, which they could not before; it frees him from the usual Temptation to Fraud and Corruption, by introducing him gratis & sine pretio; and to provoke his Care and Diligence; it gives him a more du­rable Estate in his Office, then he had before, when he bought it, viz. Freehold, an Estate for his Life: That it should be so, is convenient; because then he will be encouraged to endeavour the increase of his Knowledge in that Employment, which he may enjoy during Life; whereas precarious dependent Interests in Places tempt Men to the contrary.

That this is an Estate for Life, appears from the words of the Act; they do direct how long he shall enjoy his Office; so long only as he shall behave himself well: If the word only had been omitted, there could be no colour for a Doubt; By 1 Inst. 42. 'Tis an Estate for Life, determinable upon Misbehaviour; for during good [Page 162]Behaviour is during Life; 'tis so long as he doth behave himself well; i.e. If he behaves himself well in it, so long as he lives, he is to have it so long as he lives; during Life, and during good Demeanour, are therefore synonymous Phrases, the same thing when used with relation to Offices; the Condition annexed, if observed, continues it during Life, the contrary determines it: This is the Rule and Law in case of Offices in general, and must hold in this, for this is an Office, 2 Hen. 7.1. He is called Att' Domini Regis. 'Tis ca­pable of being enjoyed for Life, and consequently of being grant­ed so, especially when an Act of Parliament declares it shall be so: There's nothing in the nature of the Employment that hinders it; and there can be no doubt, but that a Statute may impower a Custos in possession, who hath only an Estate at will, to name a Clerk to hold during Life or good Behaviour; The Justices are at pleasure; Suppose then the Act had said, That they should name him in this manner, he must have continued, tho' they had died, or had been removed; the Case is the same here; he is as much in­trusted with the Acts of the Justices, as with the Records belong­ing to the keeping of the Custos. Then there's nothing in the Act that savours of an Intention to make him dependent on the Cu­stos's Office. The Custos is to name him, but the Justices have the controul over him; he is an Officer to the Sessions, and the Ju­stices only can remove him. The Limitation of the Interest of the Custos in his Office, and that of the Clerk, are different; and that shews that the duration of the one was not to depend on the other. Besides, the Custos is to name, not when he shall be made Custos (as it would have been worded, if the intention ad­vanced on the other side had been true) but whensoever it shall be void. It doth not say, Every new Custos shall, or that every Custos shall name, but generally when 'tis void, he shall, &c.

Then as to the Objection, That this new Act is consistent with the 37 Hen. 8. and therefore that is still in force? 'Twas answer­ed, That by the former Act, he was intirely placed under the Custos, who had power to displace him upon Miscarriage; the Sessions then could not do it, tho' a Court, and a Court of Record: they might suspend him, but could not deprive him of his Of­fice, even for ill Demeanour: This was that Act. Now the pre­sent Law abridges the power of the Custos; he must name a Resi­dent, before he might appoint any able Person; the Person was then removable by the Custos, now only by the Justices; Care is taken, that nothing is to be given for the Office; and now he may make a Deputy without the approbation of the Custos. Here's plainly a different Jurisdiction over him, and a different Estate vested in him; this express Limitation of the Interest to him is an Exclusion of the former Estate, as dependant upon that of the Custos. And besides, this is a Substantive distinct enacting Clause of it self, and no ways relating to the Statute of Hen. 8. Why was this Limitation penned differently from that, unless to give another sort of Interest. As to the Cases of new Laws which repeal former, 'twas said, That the Rule was certain, that what­soever [Page 163]Statute is introductive of a new Law, tho' penned in the affirmative, is a Repeal of the former, as implying a negative; i. e. the latter ought to be observed, if it concerns the same Mat­ter. The Statute of Edw. 6. controuled the Statute of Hen. 8. One directed the Keeper to name, the other the King, and both are in the affirmative; yet the latter must be observed. And if this be a new Estate (as it hath been adjudged below) then the Party ought to enjoy it. And for this was cited 1 Sid. 55. Plowd. 113. and other Books.

Then 'twas said, That the Clerk of the Peace, named by the Justices, in default of the Custos, would have an Estate for Life; and by the same reason it ought to be so here: Tho' the Custos be to be named, according to the Statute of Hen. 8. yet he is not to execute his Power of Custos according to that Act, but is tied to a Resident; hath not the Approbation of a Deputy, and cannot remove. By the Statute of Hen. 8. the Clerk had but an Estate at the will of the King, the Custos having no other: This is so long as he doth well in his Office; these are different; and when the Custos hath named him, he is in by the Statute. If what they on the o­ther side contend for, had been intended, there was no need of these words of Limitation at all; and the words, in like manner as by the former act, had fulfilled the intention, if such had been.

As to the word only, that would make no Alteration in the Case of any other Office. Suppose an Office granted to a Man quamdiu tantum, or solummodo, se bene gesserit, would that give less then an Estate for Life: The word only was added, not to a­bridge the Estate of the Clerk, but rather to restrain the Power of the Custos, that he should have Authority only to limit it du­ring good Behaviour, and not for a less Interest or Estate: The Custos is confined, that he shall not grant it for Years, or at Plea­sure. Besides, only is but just so long, and no longer, or so long as; and 'tis the same thing with the word, as without it. Dum­modo sola vixerit, is during all her Widowhood. Suppose a power to make Leases to hold only for and during the term of 21 Years, the same would be good for the whole Term. Then 'tis no Objection, That the Estate of the Clerk is greater than his is who names him, for that may be by Custom, as in the Offices in Westminster-hall, Hobart 153. and the Clerks of Assize, where u­sage fixes the Estate. And the like in Case of Power to make Leases upon Family Settlements to Uses, where Tenant for Life grants larger Interests then his own: 'Tis true, the Powers and Estates raised by them, issue out of the Inheritance, but the Te­nant for Life only names them; as the Custos doth here, tho' the Statute gives the Interest.

As to the Inconvenience, That dependent Offices should con­tinue against the will of their Superiours, that can be no Obje­ction, since there are few great Officers in the Realm, but have many Substitutes and Inferiours under them, which were named by their Predecessors, and are not removable; almost every Bishop [Page 164]in England is under these Circumstances, with respect to the Re­gister of his own Court, who notes and records his Acts, &c. This is an Exception to all Grants for Lives; but Credit ought to be given to the Honour, Wisdom, and Judgment of former, as well as present Officers, in respect of such Nominations, 'till some Misbehaviour shews the Choice to have been ill; and when that appears, the Persons are removable, and then the Inconvenience is likewise removed, Here the Jury have found the Plaintiff in the Action below, to be able and sufficient, and well qualified for the Office, and to have done his Duty in the Office, while he had it. Wherefore it was prayed that the Judgment might be af­firmed; and it was affirmed.

Henry Lord Bishop of London, and Peter Birch D.D. Plaintiffs. versus Attorney General pro Domino Rege & Regina.

WRit of Error to Reverse a Judgment given in B. R. in a Quare Impedit. The Case upon Record was thus: The Declaration sets forth the Act of Parliament, which Erects and Constitutes the Parish of St. James's within the Liberty of West­minster, out of the Parish of St. Martyns, &c. prout, that by force and virtue of that Act, the said Parish was made, and the Di­strict therein named became a Parish, and Dr. Tennison Rector of the same; that he was afterwards Rite et Canonice consecratus E­piscopus Lincoln', and that thereby the said Church became void, and thereupon it belonged to the King and Queen to present a fit Person, ratione Prerogative sue Regie Corone sue Angl' annex', and that the Defendants hindred, &c,

The Defendants crave Oyer of the Writ, and it is general; Vic' Com' Midd' salut' precipe Henric' Episcopo Lond' & Petro Birch Sacre Theologie Professor' quod juste et sine Dilatione permittant nos prefentare idoueam personam ad, &c. que vacat et ad nostram spectat d [...]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 i [...] hoc, viz. quod ubi per Breve pred', pred' Dom' Rex et Re­gine [...]itulant se ad Donationem pred', &c. pleno Jure, tamen per Narr' pred' iidem Dominus Rex et Domina Regina intitulant se ad, &c. Sec [...]tione Prerogative sue Regie Corone sue Anglie annex' unde pro variatione pred' inter Bre [...]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; 'tis 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. 'Tis 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 'tis 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.

'Tis 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 Ʋxoris.

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 another Subject.

2. If this Commendam Retinere, and to take the Profits to his own use, was not a Service of this Prerogative turn.

3. Supposing that there be such a Prerogative, and that the Commendam makes no Alteration in the Case, then if this Vacancy of this Church be subject to this Prerogative.

As to the first it was argued, That where an Incumbent is pro­moted to the Order and Degree of a Bishop, his Living or Bene­fice becomes void; and that where a Bishop is Patron, and the Advowson and Bishoprick are become void at a time, there the King shall present; because while the Temporalties are in his hands, he is lawful Patron for that time, and consequently had a Right to present, but not by virtue of any Special Prerogative; but on­ly as a Temporary qualified Patron, like a Dominus pro Tempore of a Mannor, may do Acts of Necessity which regularly belong to the very true Lord himself; and this perhaps gave the Colour for this pretended Prerogative: and in truth it answers every thing, that can be suggested from any ancient Authority, whether President, Book Case, or Opinion. It is otherwise where a Subject is Patron, and the King hath no Possession of, or a Right to the Patronage at that time; In such case he cannot present, and there is no Pre­rogative given by our Law, for to warrant such a Right to that Presentation.

All Prerogatives are founded upon some reason of Benefit to the People, either in respect of the Government in general, or else of some particular Subjects; but this hath neither: And in 3 Cro. 527. 'tis agreed, that there is no Reason for such a Prerogative, but 'tis added, and the Addition is somewhat strange, that many Prerogatives have no reason in them, or for them: and that 'tis unmannerly to Enquire or Doubt, if they are reasonable; whereas it might be thought that unreasonableness in the Matter contend­ed for, had been an Argument against any thing but an Act of Par­liament.

In Dyer 228. Sir Henry Sidney's Case versus the Bishop of Glo­cester, by Dyer 'twas agreed, That the Queen had no such Prero­gative; and he adds, quod sic alij Socii mei sentiebant; so that 'twas not his single Opinion against it, but the whole Court of C. B.

Then 'twas said that the ancient Law knew nothing of his Pre­rogative; all the Records, Law Books, and even Histories have been searched for the Maintenance of it, and no footsteps can be found for it: No Bracton or Fleta, no Dr. and Student, or Stamf. that treats of the Prerogative, hath any thing of it. Now all Pre­rogatives are and must be time out of mind, or not at all: And then, if this be not so, it must be an Usurpation, and being not time out of mind, it cannot be a Prerogative, because not part of the Common Law.

In the great Case which they so much insist on, of Woodley in 2 Cro. 691. Justice Hutton, who was an ingenious Man, a good Lawyer, and a true English Judge, that argued against Ship-money, he ex­presly denies, that there was any such Prerogative; that the King had no Title to present, but where himself is Patron; and that there was no such Presentment, till of late days; nor any Book of Law to warrant it; but that Case which is in Bro. Abr. Present­ment al' Esglise 61.

Then 'twas urged, That a few years Practise can no more make a Prerogative, then it can Repeal an Act of Parliament. 'Tis true, that in the Report of that Case, Crook seems to admit, that Winch was of Opinion for the Prerogative, and only Hutton a­gainst it; for he makes Winch to say, That the King has an Ab­solute Title by his Prerogative, as well in the Case of Common Persons Patronage, as where himself is so: But as 'tis in Win­ches Reports 96. where the Case is reported again, there they are both of Opinion against it; and Winch ridiculed the Opinion of Bro. Presentment 61. as the saying of the Bishop of Ely, who was then Chancellor, and might have right to present to it by force of his Place, if the King had such a Prerogative: And indeed Bro. himself makes a Remark upon it, as a thing never heard of before by a quod nota.

The King hath presented to Livings of other Mens Patronages, but that was not by force of this Prerogative, but on other grounds; as 40 Ed. 3.40. the King presented to a Prebendary, when the Prebend was made a Bishop: And the reason of that Case makes for the Plaintiff in Error, i.e. because the Temporalties of the [Page 168]Bishop, who was Patron of that Prebendary, was then in the King's Hands, and then the King was Patron so long, and he did present as such: So is the 41 Edw. 3.5. the same as Patron ha­ving the Temporalties in his hand: So is 44 Edw. 3.24. upon another reason; a Parson is made a Bishop, and the King pre­sented not Jure Prerogative, but because that the Patron was the King's Tenant in Capite, and the Heir was in Ward to the King, and so he had Jus Patronatus in him: The King hath it, where he has the Temporalties; so is Fitzh. Grand Abridgment Title Quare Impedit pl. 35. the King claimed Title to present to the Provostry of Wells in the Gift of the Bishop, void upon the Provost, being made Dean, because the Temporalties of the Bishop were in the King's hands at that time

The 11 Hen. 4.37, 59, and 76. tho' cited on the other side be­low, is a full Authority; 'tis a noted Case, the ancientest Case in our Law concerning Commendams: The Case in short is thus; The King brings a Quare Impedit, and makes his Title by the Cre­ation of the Incumbent to be a Bishop. There was some Debate on the Declaration; but the Defendants plead, that the King granted the Temporalties to the new Bishop, before the Living be­came vacant. Then the King waives that Declaration, and betakes himself to another Title, and Declares on the Statute of Provisors, because the Pope had usurped a Power which that Statute denied him; and there's no Judgment in the Case upon the first point; but 'tis most clear, that the King's Counsel in that Case were of Opinion against this Prerogative, because they did not stand to that Title, but amended their Declaration, and took to ano­ther.

This Point was directly to have been judged in the Case, if they had thought fit to abide by it: So that 'tis plain that they took the Plea to be good, if the Temporalties were in the King's hands, then the King was to present; if not, that he had no such Prero­gative. And this is a great Authority, that the King had no such Prerogative, because he waives that Title and goes to ano­ther.

5 Edw. 2. Maynard 148. Hugh de Courtney brings a Quare Im­pedit against Thomas de Hutwet for the Church of Bingham, and sets forth that Isabel de Force, Countess of Aumerle, presented such a one, upon the Livings becoming void by Cession, viz. by the In­cumbents being made a Bishop; but never a word of the King's Title in all the Case, or any such Prerogative as is now contend­ed for.

And in Owen's Rep. 144. Walmesly cites a President which he had seen in Edward the Second's time, adjudged that the King had no such Prerogative; and all that was said for it was eight or nine Presidents in Tradition or History of a Patron, being complemented out of his Right; but not one Law-Book for it.

Coke 4 Inst. 356, 357. who wrote and published much, he ne­ver mentions this Prerogative, but says that the Law is otherwise, for upon his Observation on a Record of 24 Edw. 3. Rot. 25. coram Rege, Cornub'.

Admittitur Episcopus Exon' pro fine 200 merc' pro contemptu in non admittendo presentatum Regis ad Ecclesiam de Southwel; pro quo contempt' omnia temporalia Seisita fuerunt in manus Regis, & tunc temporis ante finem fact' vacavit Archidiaconat' Cornubiae ratione quod Incumbens Electus fuit in Archiepiscopun [...] Dublin' in Hibernia, (Temporalibus Episcopi Exon' ad tunc in manibus Regis existent) per quod Dominus Rex recuperavit versus Episcopum dict' Archidiaconat'. Upon this Record he makes two Conclusions;

1. Tho' Ireland be a distinct Kingdom, yet 'tis governed by the same Law as England in these Matters.

2. That when the Arch-Deacon was by the King preferred to an Archbishoprick, he had the Presentation to the Arch-deaconry in respect of the Temporalties of the Bishop of Exeter, Patron of the Arch-deaconry, and not by any Prerogative.

Here 'tis observable, That my Lord Coke took it that the Patro­nage, by reason of the Temporalties, gave to the King this Right, and not the Prerogative.

Then his next Paragraph is stronger, If a Bishop in England be made a Cardinal, the Bishoprick becomes void, and the King shall name his Successor, because the Bishoprick is of his Patronage. All which implies, That if 'twere not of his Patronage, 'twould be otherwise, else why is that reason added.

Obj. But then say they, The Pope's Usurpation prevailed in all those times, and the Pope had it when Provisions were in use. But that can be no Argument to give the Crown a Prerogative, for the Pope was a Tyrant over the English Church, and by the same Reason the King may claim to be above all Laws, because some Judges said as Hank did in Hen. 4. quod Papa potest omnia; at that rate no Act of Parliament shall bind the King, because the Pope thought himself bound by no Law of ours.

Besides, There were several of our English Monarchs and Eng­lish Parliaments, that boldly withstood these Usurpations; and there were divers Intervals of Liberty and Freedom from that Ro­mish Yoke, and we never read of any Exercise of this Preroga­tive in those Intervals.

'Tis questioned in 41 Eliz. and in Owen's Rep. 'tis said that the Pope's practise was no Authority to warrant a Prerogative, for they used to do strange things, and the Clergy then made his Will a Law; and our English Lawyers have always complained of it.

Obj. There's no ancient Books that mention Title by Lapse. But 'twas answered, That in Caudries Case, 'tis fetch'd from the Reign of Edw. 3. and that is no very late Reign, and Lapse is so ancient, as it appears by the close, Roll 21 Hen. 3. in n. 12. that the De [...] and Chapter pretended to it during a Vacancy of a See upon [Page 170]an Advowson of the King's own; but it appears there by a Writ to that purpose, that no Lapse per tempus semestre accrued on the King; which shews that 'twas old Law for the Subjects, Pryn 2.481.

By a Writ 8 Hen. 3. num. 4. Dorso, Prynne 2 Vol. 389. it appears the Archbishop of York was to present si ultra tempus sex mensium vasari contigerint, and 1 Inst. 2 Inst. and all the Booksare full of it, and Doctor and Student, which is no new Book, treats of it, cap. 31. Besides, that and this are different Cases; there is a ne­cessity of such a Law for the Service of the Church; the King is by the Constitution intrusted with the Supreme Care of his Peo­ple, both for Religion and Property; and if a Patron will not do it in reasonable time, 'tis reasonable he should lose it, and the King present.

But to make that a similar Case, they should shew that these Prerogatives were of equal duration; and that there's as much reason for the one as for the other; but because the King hath pre­ferred the Patron's Friend, therefore the King shall have it, that cannot hold upon a toties quoties when the Friend is dead, and three or four more of the King's presenting, for by this means the Patron may never present to his Church.

2. The next Query was, Whether this Commendam for above the six Months, with power to take the Profits to his own use, shall be a fulfilling of this turn, or otherwise prevent the Operati­on of the Prerogative on it; by this he was a plenary Incumbent after Consecration, and he had the Profits to his own use: He was not meerly the Ordinary's Deputy to supply the Cure during six Months, but hath it in his own right, and this with the King's concurrence.

The Prerogative could only work upon an Avoidance by Pro­motion, and that is upon Consecration; this becomes void at the expiration of therein limited.

Tis to be considered, That this is none of the old Prerogatives of the Crown, which in a Competition are to be preferred before the Subject's Right, it is a Prerogative not to be favourably interpre­ted, but stricto Jure, for 'twas only taken up as a Papal Right, and so 'tis plain from 2 Rolls Abridg. 358, 359. As such a Papal Right, it ought to be interpreted stricto Jure, even by the Pope's Law, being against the Patron's ordinary Right, and so 'tis natu­re odiose; there might be cited Suares and others to this purpose: Perhaps the Pope's Right was not so much allowed here, as to make it clear with him in this Point; for Dr. and Student, cap. 36. & 37. says, that the Pope's Collection of Benefices vacantium in Curia, was held to be within the Statute concerning Provisions, viz. 25 Edw. 3.

This Prerogative hath been construed stricto Jure here:

1. In the Case which the Lord Chief Justice Vaughan Reports, where the Crown upon the promotion of an Incumbent to the Bi­shoprick of Oxford (and who by Dispensation retained his Living till death) would have presented to the Living when it fell vold, by the Incumbent the Bishop's Death; it was resolved that the King's [Page 171]Prerogative was not to present to the next Avoidance after the Promotion, but to the next Avoidance by the promotion which in that Case was none, for that the Avoidance was by Death.

2. In the Case my Lord Chief Justice Dyer reports 228. the promoted Incumbent was dispensed with to retain for a term of years; within which term he resigned; and there, upon the A­voidance, the Prerogative was not admitted to take place, because the Avoidance was by the Resignation, and not by the Promo­tion.

Now if this Prerogative is to be interpreted stricto Jure, it will have no place in this Case, where the Incumbent promoted is dispensed with to retain for a term of time which is elapsed: For,

The King's Prerogative will have a very Natural Construction, by admitting his Title to present to all such Avoidances, as com­mence immediately from and by the promotion.

This is the Avoidance which the Law intends, and which the Law would always cause (if not hindred to operate by Dispensa­tion) and this Avoidance is that therefore, which the Prerogative must most principally respect, and only that, if it be to be strict­ly taken; insomuch that were it in the sole power of the Arch­bishop to grant this Dispensation, it seems the King's Title would clearly be set aside by it: much more therefore should it be so, when what the Law designs, is prevented by the Act of the King himself: For tho 'the Lord Vaughan saith, That the King's Concur­rence to the Dispensation is only for formality; yet 'tis plain that the King may force the Archbishop to grant it.

Now this Interpretation of the Prerogative seems to be alrea­dy made in the Case cited upon a Resignation of the Incumbent dispensed with, for, (as it is there intimated) if the King's Title was not supposed to be gone by the defeating of the immediate Avoidance, which the Law intended, but the King would not permit. It would be very strange that it should be eluded by the Resignation of the Incumbent, to which the King was no Party; for if the King had a Prerogative to present to this new, this deferred, this adjourned Avoidance, it would be more rea­sonable to allow it to be hastened, then defeated by such a Resig­nation before the time.

This Prerogative ought to admit such a Restriction from the reason of the thing, and from the consideration of the Inconve­niencies which may otherwise follow.

To the Subject. A Patron might be content to let the King exchange a single Life, and put in a Clerk in the place of one removed, much rather then that the Living should be held on by one in Commendam, that from thenceforth would be sure to leave it, and be absent for a better Residence in a Palace; yet they may, as they have reason, think it too hard, that the King should, as it were, let a Lease of it first, and afterwards put in his Clerk for Life; and tho' the King doth commend here but for a small time, yet he may for a longer. He may perhaps, as the Pope [Page 172]did often, dispence with the Bishop to hold durante beneplacito, and when the Incumbent is in danger of Death, then present ano­ther; so as the Patron may have his own Clerk not removed, as was first intended, but dispensed with, to wear out his Life in the Benefice, and yet after all have another put in.

The Crown may have Inconvenience by the straining of it fur­ther than this, for all strains weaken, if not break the thing it self.

This Opinion of theirs arises from the Principle my Lord Vaughan lays down, That a Commendam neither gives nor takes a­way Right, but only is a Dispensation to hold, and he continues Incumbent still, and it prevents an Avoidance; and if so, why should it not also prevent the operation of the Prerogative too.

As to the Case of Woodley, 2 Cro. 691. they say 'tis Law, to prove the other Point for them; If it be Law for them in that Point, 'tis Law against them in this.

That a Dispensation ad retinend' prevents the Grantee of the next Avoidance: The Case was thus; A Man hath a Grant of the next Avoidance, the Incumbent is promoted, but with a Commen­dam Retinere for six years, and dies, the Grantee shall not pre­sent, because he is to have the next Avoidance only, and no o­ther: 'Tis the words of the Book, that when the Incumbent is created a Bishop, and the King presents, or grants, that he shall hold it in Commendam (which is quasi a Presentation) and he is thereby full Incumbent, and may plead as an Incumbent; if the Grantee of the next Avoidance do not then present, he hath lost his Presentation; for he ought to have the next, and he cannot have any other.

Now if this be so that a Commendam Retinere hath so much of a Grant in it, and is so equivalent to a Commendam ad recipiend', that it will set aside and frustrate a Grant of the next Avoidance, and be it self taken for a presentation to the next Avoidance a­gainst the Grantee; by the same reason it must be taken so against the King, as a Presentation to an Avoidance, and consequently his turn is served by it.

Much might be said against those Commendams, as promotive of Pluralities, and tending to the ruine of the Church, and this out of our own Law-Books; but it is not material at present; 'tis however to be observed, that this is not a Commendatory for six Months, during the time that the Patron may forbear to present; such Person continued then, is only commendatorius under the Bishop to provide for the Church, as 'tis his Duty to take care of it during that time.

3. Admitting that the King hath such a Prerogative, and that this Commendam, tho' it gives the full perception of the Profits, is not a fulfilling of the King's turn, nor doth any way distinguish the Case, or exempt it from the Prerogative: yet this is a Case not within it; and this doth appear of Mr. Attorney's own shewing in his Declaration upon the King's behalf: He hath set it forth to [Page 173]be a Parish newly created by Act of Parliament, a thing not in esse before. It appears by the Declaration what that Act is; it must be taken as 'tis there set forth. To this Declaration the Bi­shop hath demurred. Now if by that Declaration it appears that the Bishop, and not the King, is rightfully intituled to present upon this Avoidance, the Judgment will and must be according­ly for the Defendants.

Mr. Attorney, by his Count, doth agree an Avoidance with­in this Act of Parliament, by the Promotion of Dr. Tennison; and Mr. Attorney doth likewise admit and agree, That the King is not Patron of this Benefice called, St. James's; he doth a­gree too, That the King hath no Right given to have any Turn or Presentment by this Act; for he saith, 'tis to be by the Bishop of London and the Lord Jermyn; he doth also ad­mit by this Declaration, That Dr. Tennison was never presented to this Living, that he came not into it by Virtue of any Pre­sentation from any particular Patron; nay, That he did not come into it by any sort of Presentation whatever; nay, he yet doth further agree, That this Parish-Church was never present­ed to by any Person at all.

But he insists upon it, That now it is void, the King hath a Right to present to it, by force of his Prerogative upon this Avoidance; tho' the Act saith, That the Bishop shall present after the Decease of Dr. Tennison, or the next Avoidance.

The Query is, whether the King's Prerogative can operate up­on this Vacancy of this Benefice, thus filled, and thus avoided, against the express Words of an Act of Parliament. It will be necessary to repeat the Words of the Act; and they are to this Effect, That all that Precinct or District of Ground, within the Bounds and Limits there mentioned, from thenceforth, should be a Parish of it self, by the Name of the Parish of St. James's, within the Liberties of Westminster; and a Church thereupon built, is dedicated by the Act, to Divine Service, and that there should be a Rector to have the Care of Souls inhabiting there; and then after a full Commendation of the Merits and Services of Dr. Tennison in that Place, the now Reverend the Bishop of Lincoln: It doth Enact and Ordain him to be the first Rector of the same; and that the said Doctor and his Successors, Re­ctors of the said Parish, should be incorporated, and have a perpetual Capacity and Succession by the Name of the Rector of the said Parish Church; and by Virtue of that Act, should be enabled by the Name aforesaid, to sue and be sued, to plead and to be impleaded, in all Courts and Places within this King­dom, and should have Capacity to hold and enjoy, purchase and acquire Lands, Tenements, and Hereditaments, to him and them, Rectors thereof, for ever, over and above what is given and settled by that Act, to any Value not exceeding 200 l. per Annum.

Then it Enacts, That the Patronage, Advowson, or Presenta­tion after the Decease of the said first Rector or Avoidance thereof, shall or should belong and appertain, and by that Act, shall or should be vested in the said Bishop of London for the time being, and his Successors, and in Thomas Lord Jermyn, and his Heirs for ever.

Then it Enacts, That the first Rector, after such Decease or Vacancy, shall be presented or collated by the Bishop of Lon­don for the time being; and the next to succeed him, shall be presented by the Lord Jermyn and his Heirs, and the two next succeeding turns by the Bishop and his Successors, and the next turn to the Lord Jermyn and his Heirs, and then the like Succession of two turns for one to the Bishop and his Succession, and of one turn to the Lord Jermyn and his Heirs, for ever after. This is the Act.

Now 'tis to be considered, That this Law doth bind the King, and would bind him in point of Interest, if he had been Patron of St. Martins in Right of his Crown; and if a Right or In­terest of the Crown shall be bound by an Act of Parliament, a Prerogative shall be in no better plight. It cannot be said, That he shall not be obliged by it, because not named; for tho', and where he is not named, he is bound by Mul­titudes of Statutes, according to the 5 Rep. 14 and 11 Rep. 68. He is bound by all Acts generally speaking, which are to pre­vent a Decay of Religion; and so he is bound by Acts, which are for further Relief, or to give a more speedy Remedy against Wrong.

It is no Objection, that this Law is in the Affirmative; for that it is introductive of a new Law in the very Subject, that is created de novo. Then before this Act the King had no Right over this; and if he hath now any over it, he can only have it, how, when, and as the Act gives it, not contrary to it; then the Bishop was Patron of the Place out of which the Pa­rish is created: And the Bishop can claim no other Right, than what the Act gives him, Bro. tit. Remitter 49. 'tis so agreed 1 Rep. 48. and in 2 Rep. 46. if Lands be given in Fee to one who was Tenant in Tayle, his Issue shall not be remitted, because the latter Act takes away the force of the Statute de donis.

Suppose he had been Enacted to be Patron of a Living, to which he had a former Right, there could be no Remitter, be­cause as to particulars the Act is like a Judgment, and estops all Parties to claim any thing otherwise than according to the Act; and yet Remitter is a Title favoured in the Law, then if he have this only by force of this New Act, and another Per­son should present in his turn so given, 'twould be an Injury, if a Subject did it, and consequently the King cannot do it; for the Prerogative which this Act gives, or which the Com­mon Law gives, is not yet come to take place.

Tho' this be an Affirmative Law, yet according to the Rule taken and agreed in Slade's and Drake's Case, Hob. 298. being introductive or creative of a new thing, implies a Negative of all that is not in the purview, and many Cases are there put to this purpose.

Then also it being particular and express, it implies a Nega­tive, because this and the other are inconsistent;

But First, 'Tis observable all Prescriptions and Customs are fore-closed by a New Act of Parliament, unless saved. Suppose there was an Act of Parliament in Force before this, viz. That the King should present; yet another Statute Enacting somewhat new and inconsistent, will carry a Negative; and if so, in Case of a former Act, there's almost as much Reason for a Prerogative: It must be agreed, That a Man may prescribe or alledge a Custom against an Act of Parliament, when his Prescription or Custom is saved or preserved by that or another Act; but regularly a Man cannot prescribe or alledge a Custom against any Act of Parliament, because 'tis matter of Record, and the highest and greatest Record which we know of in the Law, 1 Inst. 115.

Suppose Money were by the Law payable annually, and an Act comes and says it shall be paid Quarterly, by even and equal Portions at the four Feasts, for the first Year, this will certainly alter the Law: 'Tis true,

That a consistent Devife or Statute, is no Repeal or Revoca­tion; but if a new Act gives a new Estate different from the former, this amounts to a Repeal, Fox and Harcourt's Case.

The same Rule holds even in Case of the King as in the Arch­bishop of Canterbury's Case, 2 Rep. 46. and agreed to in Hob. 310. the Query was, if the Lands came to the King by 31 H. 8. cap. 13. or by the Stat. of Edw. 6. and objected, That the latter was in the Affirmative; yet held, That it came by the latter, be­cause tho' they were Affirmative Words, yet they were diffe­rently penn'd; and the last being of as high an Authority as the first, and providing by express Words, That by Authority of that Parliament they should be in actual Possession of the King, held that they should be in him by force of that last Act; and Reason will warrant these Differences, because if otherwise, Inconsistencies and Contradictions must be al­lowed.

Then this is a new Law in the whole; 'tis a new Parish, 'tis a new Advowson; and in truth 'tis no Advowson till the Avoi­dance; nay, by the words of the Act (if any difference can be in an instant, between, at and after, as our Law in several Cases al­lows it, as per mortem & post mortem, Devise by Jointenant, &c.) there's no Patronage fixed, 'tis no Advowson until after the A­voidance; for so are the words; after the Avoidance, the Ad­vowson, [Page 176]Patronage, and Presentation shall be vested, foret vestit' in Episcopo Lond' & Domino Jermyn, and till then 'tis vested in no Body; and that which is in no Body, is not at all; unless it be, as some times for necessity sake we say, in nubibus, or in abeyance; but to say that an Advowson shall be in abeyance, before 'tis created or ordained to exist or be at all, must favour somewhat of Absur­dity: Now the King can have no Prerogative turn upon an A­voidance, by a Promotion, but when the Patron's Clerk was pro­moted and preferred; and here is no Patron till that Avoidance happen. They say 'tis vested immediately, tho' to take possession hereafter, as a Reversion granted cum acciderit, according to 3 Cro. 323. and 1 Saund. 147. But that's not this Case; for there is a present Grant; here the words are, After the Avoidance shall be vested, and not before; and being a new thing it may be so; as a Rent-charge de novo may be granted to take effect de futuro, but cannot be so of an old Rent.

2. Dr. Tennison comes not in by the Patron's Presentation, but by Donation of the Parliament; and there is not any President for a Prerogative to present to a Donative upon a Promotion: The King cannot present to that, which the Patron could not have presented to: and the Patron could not present to a Dona­tive, quatenus a Donative; and for the King to present to a Donative, is to injure the Patron; for 'tis to make that Pre­sentative, which was never intended by the Patron to be so: And yet in Case of a Donative with Cure of Souls (as it may be of a Parochial Church, tho' exempt from Ordinary's Jurisdi­ction, according to Yelverton 61. 2 Roll. Abridg. 341.) the Ordinary may compel the Patron to Collate some body, as was held in Case of the Rectory Parochial Donative of St. Burian's in Cornwall; and the Tower of London is with Cure of Souls, 1 Cro. 330. 2 Roll. Abridg. 331. 1 Inst. 144. The same will be void by a Promotion of the Incumbent; for 'tis not meerly the change of Inferiour into Superiour that makes the Avoidance; for then an Incumbent, made Bishop of another Diocess, or in Ire­land, would not avoid the Benefice; but 'tis the Doubleness of the Charge, contrary to the Council of Lateran, which hath been received here. This is more different from the pretended Notion and Reason of this Prerogative, then that Case of a Common Donative; for in Case of a Donative, there's an Incumbent of the Patron's own preferring, who is further promoted by the King, and still in being, and the same Patron claiming a Right to fill the same: Here 'tis an Incumbency by Gift of the King, Lords and Commons. And then, if it be considered what this new Prerogative is, for so it must be termed, since there's no foot­steps for it in the old times, and the Statute of Prerogativa Regis (which enumerates most of them, and is rather a Collection of old Prerogatives then a new Statute) mentions it not; 'tis a Pre­rogative to present upon the Promotion of the Patron's Presentee, or incumbent presented in his Right; here is no such thing; 'tis [Page 177]as their Books say, when the Patron's Presentee is advanced to a greater Dignity in the Church; and the pretended Reason given for it to avoid the Objection, That no Prerogative is to be inju­rious, or to import a Wrong done to the Subject, is this, That here's no Injury to the Patron, but a Kindness to his Friend, be­cause the Person which he chose and preferred is bettered, and further preferred to an higher Degree of Honour and State in the Church; all this fails here; so that there doth not seem to be the same Colour, why the King should have it in this Case.

It is a good Argument, according to Mr. Littleton, That because no such ever was before, that therefore of right it ought not to be: And if no Practise hath been to warrant it, in Case of a Gift by Act of Parliament, there's no reason it should be allowed in this Case; for a Prerogative never used, can never be with Pro­priety called a Prerogative; much less reason have they for it, if they have no Practise or presidents to warrant their Claim in case of any Donative.

Prima facie the patron hath the right; to evade that right of his Mr. Attorney pretends to a Prerogative; then it being of com­mon right with him, they ought to demonstrate that there is such a Prerogative to controul that right in this particular Case, and the Arguments brought for it ought to be clear, convincing, and un­doubted: Now because where a Patron's Presentee is preferred by being consecrated a Bishop, the King shall present, that there­fore where the Parliament's Presentee is preferred, the Patron shall lose the benefit of his Presentation, is a non sequitur, because the Cases are not the same; for the supposed Recompence or Consi­deration in the one, holds not in the other: This is not the Case of a Prerogative incident to the Crown, from the Necessity of Government, nor is it a Prerogative which respects the Continu­ance or Improvement of the Revenue, so as for the benefit of the Kingdom, an Extent or Enlargement of it beyond former Pra­ctise, may seem absolutely needful; and therefore the common pretences of Intendment and Presumption, are no more on their side then upon this; nay, 'tis rather otherwise, because that com­mon right is with the Patron.

It is no Objection to say, That there never was such a Pro­motion or Avoidance before; whether there were, or not, is not material; but that rather turns upon them, for that Evinces be­yond dispute, that there never was such a Prerogative presentati­on in Fact as they now contend for; Argument' à simili is the weakest, but they have no Case like this; nay, they have no O­pinion in the Books declaring on their side; nay, the Book De­finition of this Prerogative, as was said before, is only to present to a Benefice, vacant by promotion, that was antecedently pre­sentable; here the whole Kingdom is Patron, and all that they can pretend to, is when a Man is dignified by promotion, who came in by Presentation or Collation, and not otherwise.

It is not at present proper to argue when this Prerogative shall begin or commence upon this Church, or if ever; 'twill be time enough to dispute that, when another Occasion offers it self, when the Doctor, or any of his Successors, happens to be preferred to the same state, as his Predecessor is. It suffices to maintain that this turn belongs to the Bishop of London.

This is not an Advowson created, as others usually are. First, As was observed before, no Advowson is fixed, or vested, or crea­ted, but in futuro, the same Person is made a Pluralist by Act of Parliament, tho' the Act it self says the Parish was too great for one Cure.

Then 'twas observed, That this is not a Patronage turn; it must be admitted that this Act vests the Fee-simple of this Ad­vowson in the Lord Jermyn and the Bishop of London, and in their respective Heirs and Successors by turns, viz. to the Lord Jermyn one, and to the Bishop two successively; and so the Suc­cession is enacted to be for ever; now this is not one of those Patronage successive turns, but it is a particular Presentation which is given to the Bishop of London by express Limitation, and the penning is different. The first, about which the present Con­test is, is to be by the Bishop of London for the time being; then the successive Presentations of one and two, are to be, one by the Lord and his Heirs, and the two by the Bishop and his Successors; so that there is no words in the first that looks like the Gift of an Estate, but 'tis only one first particular Presentation, given to the Bishop more then ordinary: It is not one of his turns, which he is to have as Patron, by two to one: But first he is to present one, before ever it comes into the form and manner of turns pre­scribed by this Act, in perpetual Succession: For if otherwise, the Patronage would be to the Bishop three turns in four, to one of the Lord Jermyns.

As to their Objection, That a Patronage newly created shall be in the same plight, and under the same Rules and Circum­stances and Incumbrances as another; that Objection can never take place, before it becomes a Patronage, which this was not: And 2. with a stronger reason, it can never take place, till it hath been presented unto: 3. It can never take place, where a particular Presentation is at first given by express words.

The words are, The first Rector shall be Collated by the Bishop for the time being, and then the Succession; and it is always to be re­membred that 'tis an Act of Parliament. Now suppose the Act had said that the Patronage, after an Avoidance, should be vest­ed in A. and B. but that the first Rector, upon that Avoidance, should be presented by J. S. a third Person; this could never be reckoned a common ordinary turn, subject to the like Preroga­tive as others: The Bishop here claims not this particular Presenta­tion in right of his Patronage, whereby he is to have two turns to one; but by express Gift of the Parliament.

Suppose the King had been Patron of St. Martyns in his own right, no Man would say, that this Act, thus creating of a new Parish, a new Rectory, and a new Patron, would not have bound him.

Surely the King's Assent as Supream or General Patron, is as much implied in this Act, as it would have been, had he been a particular Patron of the Church of that Parish, out of which the new one is taken: Here the King himself gives the first Pre­sentation to the Bishop of London; for the King and People, all together, the whole Kingdom are Donors or Grantors of this first Presentation to my Lord of London.

Suppose such a Right as this is, were in a Subject, and he were able to prescribe for it, he must then have set forth, that time out of mind, wheresoever any incumbent of anothers Pre­sentation was preferr'd by him to another Living, that he should have the Presentation ea vice; this is the most that could be made of it. Would any Man say, That this Case would fall under that Prescription, or the reason of it. Now tho' a Prero­gative be part of the Common Law, and not like a Prescrip­tion; yet every Prerogative hath its Boundaries and its Limits, and a Reason for it too; or else 'tis no Prerogative, that our Law allows of.

Besides, there's good Reason in Fact, for this Provision of the first Presentation, because the Act takes notice of the Parish of St. Martyns; out of which, this Parish is taken, and the Bishop of London was Patron thereof, and at first there's the same In­cumbent of both, Dr. Tennison: Now the Patronage being formerly in the Bishop, and in the Successive Patronage, crea­ted of this new Church by this Act, there's one turn in three given away from him to a third Person, then this Presentation out of turn is at first given to the Bishop of London, in Con­sideration of the third turn given to the Lord Jermyn afterwards.

Then there's another thing deserving of notice in this Case, and that's this; That one and the same Person being incum­bent of both Parishes, the King hath had the Effect of his Prerogative upon the promotion of this very Incumbent, by presenting to that Church, into which he came by Presentation and Induction, viz. St. Martyns; but here the Prerogative can­not operate, because he came into this by Donation, not of the Patron, but of the Parliament; and consequently as was said before, of the King himself.

Besides, here's no Salvoe of the King's Prerogative, or other Right; and to what end in all private Acts for Sale of Estates, paying of Debts, docking of Settlements, and the like; do the King's Council take Care, always to insert a saving, if the same be not necessary.

Here's a new Estate given, and that to a particular Person, and in a particular manner; and no Person can claim a Right to, in, or over this, but as the Parliament hath given it; as for [Page 180]instance, in an Act where two Churches are united, as upon the Rebuilding of the City of London, the first Presentation is ordered to be by the Patron of the Living, of the greatest Va­lue in the King's Books. The King is Patron of the Living of the lesser Value, as he is of several of them in London, he shall not have his Common Prerogative of the first Presentation, which he hath in all other Cases, where his Interest is intermixed with others, as in Case of Coparceners; and the youngest is in Ward, he shall present first; tho' the eldest, by the Common Law, is to have the first turn, and the King's Right is in the Place of the youngest; but yet in case where that an Act of Parliament gives a new Estate, and prescribes a Method, tho' in the Affirmative, the Method limited shall take place against the King's Prerogative of being preferr'd; and the reason is, because it is a new Right which the Act gave to present to the Church, to which the Union was, and consequently it must be taken as 'tis given: And so was it held by the Civilians at Doctors Commons, before the Chancellour of London, and seve­ral assistant Delegates, upon a Caveat there against Institution, and on Advice of the Lawyers, the King's Presentee acquiesced, and never brought any Quare Impedit.

The Argument now is only, as to this one first Presentation, there's no flat Contradiction between the use of the Preroga­tive and My being Patron for ever; but 'tis a Contradiction, to say, the King and I shall both have the same Presentation.

To say, That he shall have a Prerogative here, is to say, That he shall do a wrong to his Subject, for the Bishop can have no other than this one Presentation; he can have no other in lieu of it, and has no Advantage or Recompence antecedent or subsequent from this Prerogative.

First-Fruits and Tenths are not demandable from this Parish, because no saving of them in the Act to the King; upon pas­sing the Act, 'tis known, That in the Commons House the same was press'd to be inserted, but denied, and the Clause re­jected; the same Attempt was made in this House, but to no purpose.

In other Acts for the Erecting of new Parishes, there is ge­nerally such a saving, as for St. Ann's, and St. John's of Wap­ping, and the Act for uniting of Parishes, upon Rebuilding the City, hath a Clause of saving to this Effect: All which shews, That such a saving is necessary, tho' the First-Fruits and Tenths being formerly enjoyed by the Popes, might have been pretend­ed, by Construction of Law, to be a Profit annexed to the Crown by Stat. of 26 Hen. 8. cap. 1. all Payments to the Pope having been prohibited by 25 Hen. 8. cap. 21. and all Profits and Commodities enjoyed by the Popes thereby annexed to the Crown. Yet neither that Act, nor that other in the same Year (whereby the First-Fruits and Tenths of all Ecclesiastical Li­vings [Page 181]that then, or thereafter should belong from any Parsonage or Vicarage were granted to the Crown) were ever intended to reach this Parish of St. James's, it being a new Creation by Act of Parliament; and because in the Act no First-Fruits or Tenths are given or saved; and there's as much Reason to ar­gue in that case, for an implied saving, as there is for this Prerogative.

Suppose it should be admitted, That a presentable Benefice created by Act of Parliament, should be subject to the same Rules as others are; yet that will not reach this, because not like other Benefices till once presented to; 'tis a peculiar singu­lar Case, by 2 Roll. abr. 342. and 1 Inst. 344. If a Patron pre­sent to a Donative, it becomes presentative ever after; which shews, That 'tis the Presentation which makes it presentative in its Nature, now here 'tis plainly a Donative till once pre­sented to.

Then it was said, That it is not needful to engage in the Dispute, whether this Prerogative shall prevail against the Gran­tee of the next Avoidance, according to Woodley's Case, 2 Cro. 695. or whether that case be Law, for that the same is plainly distinguishable from our Case, for there the Grantee comes in the place of the Grantor, quoad that Avoidance, and he can have no better or greater Right than his Grantor would have had, if no such Grant had been made. Here ours is a first Pre­sentation, granted by Act of Parliament.

Suppose the Donors of this Presentation to the Bishop, had named a Person in Esse, to have succeeded upon the Death or A­voidance of Dr. Tennison; no Man will pretend that this Pre­rogative should have prevented him, the reason given in the Books cited for that Case of the Grantee of the next Avoidance, is, That the Patron could not grant more or otherwise, than under the Contingency of this Prerogative. Surely they will not say, That the King, Lords, and Commons, were such fee­ble qualified, restrained Donors; then the Parliament being the Donors, the Prerogative insisted upon, and the express Gift to the Bishop, are contradictory and repugnant, and cannot both be fulfilled.

It is no Argument to say, That if a Vacancy had been in the See, and the Temporalties in the King's hands, then the King must have presented and not the Bishop, and that would have contradicted the Act as much as this; for that had been the same as if the Bishop had presented himself, for the King during that time, was in loco ordinarij.

To say, That the Bishop of London hath no more right by the Act of Parliament, then a Grantee of the next Avoidance hath by the Common Law, this surely is no very close reason­ing, for there is some difference between the one and the other: Here the Act of Parliament (which hath the King's Consent) [Page 182]gives a particular and express Right, and an Act of Parliament may (as Coke saith) alter, change, annul, abridge, diminish, qualifie, enlarge or transferr any Common Law; nay, it hath the Common Law and the Prerogative too, under its Con­troul.

Upon the whole, it was concluded, That by this Judgment, a new Prerogative is affirm'd to belong to the Crown, and this is extended to a turn after a Commendam, which may be a pre­judice to all the Patrons in England; 2. It destroys and makes useless the plain and express Words and Meaning of the Act of Parliament, which gives the first Presentation to the Bishop of London, and 3. It confirms the old Non obstante Do­ctrine of Commendams, which hath always been acknowledged to be to the prejudice of the Church; wherefore it was prayed, That the said Judgment might be revers'd.

On the other side it was argued, That this Judgment ought to be affirmed; for that, as to the first pont, tho' it hath been said to be a new thing, and grounded upon late Presidents, yet it hath been so often adjudged, that it doth not now deserve a Debate; 'twas solemnly settled in Wright's Case, and upon Consideration, 2 Rolls Abridg. 343, 344. 3 Cro. 526. Moore 399. That tho' many ancient Authorities have been lost, yet in Brooke, Present­ment al Esglise 61. there is the Opinion of the Bishop of Ely for it. And as to the old Presidents, there's no need of Recourse to them, because continual Usage hath been with the King in this matter; a settled Opinion for an hundred years is surely enough to declare the Law as to this particular: This is sufficient Evidence to prove this Right in the Crown, there being no Judicial Opinion against it. The reason for this Prerogative, is because the King, by the exercise of his prerogative in the promotion, hath made the A­voidance, and it is but changing one Life for another, and pos­sibly the Patron is as near the having another presentation, as before.

It was agreed that this is none of the prerogatives mentioned in the Statute de Prerogativa Regis; but then 'twas said, That the prerogative to present by Lapse, is not in the Statute, and yet that is admitted; so that the omission of it there, can be no ob­jection; this is a prerogative that follows a Vacancy occasioned by the exercise of the prerogative, for such it is to make Bishops. The King first made them by the donation of a Ring and Staff, then by a Conge d'Eslier, the King gave licence to choose, and ap­proved the person chosen, tho' not by absolute donation, as before. By the 25 Hen. 8. the Crown is restored to its ancient Preroga­tives, and there are Letters Missive, directing the choice of such a person. In Wright's Case in 3 Cro. and Moore, then was the first time it came in question; and it was debated and considered, and the Judgment upon deliberation settled it with the King. And as to the Objection, that in Dyer 228. 'tis said, That he and the rest [Page 183]of his Brethren thought otherwise; that point was nothing to the Case then in question: But however, 'tis observable that the Queen presented Anno 6. and the Patron did not dispute it, as appears in Woodly's Case. And in Owen's Rep. 'tis said, that seve­ral Presidents in Henry the Eighth's time were searched. 'Tis true, that in 11 Hen. 4.67. and 21 Edw. 4.33. the King did not in­title himself by virtue of his Prerogative, but by reason of the Temporalties being in his hands; those Cases can influence no­thing in this matter, because the King's Prerogative consists not in ousting of himself, but of a Stranger; it is to present in the turn of another upon such a Vacancy, but not where he is intituled himself, there he presents by virtue of his own Interest.

As to the Objection, That the Old Books are silent about this Prerogative; 'twas answer'd, That before the Statute of Provisors 25 Edw. 3. the King was defeated of his Prerogative by reason of the Pope's Provisions, and therefore the King could not have it; whereas 'tis the Exercise of his Prerogative of Promotion, that gives him this Prerogative of presenting upon this Vacancy by such Promotion; and therefore that Statute was made to pre­vent all Incroachments; and tho' it was made to that very pur­pose, yet the Clergy being then so strongly united to the Pope's Interest, the Kings of England could not use that Prerogative, and frequent Usurpations were made upon the Crown, till the Pope's Supremacy was denied. The 41 Edw. 3.5. shews that there were such Usurpations. 7 Hen. 4. cap. 8. complaint is made of them: and 5 Hen. 4. num. 95. Cotton. 458. And thus it continued till the Statute about the Supremacy 28 Hen. 8. the Kings are to make the Bishops; and then consequently, in point of Law, the right of presenting was restored.

Then 'twas urged, That none of the old Books do mention the King's right to present by Lapse, except in Cawdries Case, where notice is taken of a Case in the time of Edw. 3. but that is not to be found. Bro. tit. Presentment 61. is as much Authority for this as that in Cawdries Case is, for the Prerogative to present upon Lapse. And this right in question, having been enjoyed so long, should not now have been questioned.

In 5 Edw. 2. Maynard 148, 198. there is one Instance of the Patron's presenting again; but then Provisions were common and usual, Walsingham 1313. so that supposing the Patron did in those times present, the King was not concerned, because 'twas then only the Pope's right, as was thought, and the Pope might be ignorant of the matter. And from thence 'twas argued, that the practise of those Times cannot be urged as Arguments in the present Case.

Then 2. it was urged, That the King having this Prerogative, he is not debarred of it by the Dispensation to hold it, &c. nor by the Act of Parliament, nor by the King's Confirmation of it. The King by that did transfer no Right to the Incumbent, but [Page 184]meerly did continue him in, and there was no Avoidance, but the same is suspended; and had the Incumbent died, or resigned, during this time, the Church had been void by such Death or Re­signation, and had debarred the King of his Prerogative: The Incumbent still remains Incumbent for the time, by force of his first presentation, and so the Dispensation doth prevent the A­voidance: He is not in by force of any Title which the Dispen­sation gives him, but of his old Title, Jones 91. 161. Vaughan 18.

3. Then 'twas argued that the Act of Parliament for making this new Parish did not alter the Case. 'Twas said, that the ma­king of this a Rectory in this manner, doth make it subject to this prerogative; and that it was by no means the intent of the Act to debar the prerogative. It is made a Parish and Rectory, such as others are, subject to the EcclesiasticalLaws, as well as a­ny other Benefice, under the obligation to Residence, and liable to the Common Jurisdiction and Censure of the Ordinary; and 'tis to be made vacant by the same ways and means, as other livings are; the words Death, or any other Avoidance, prove it to be so: Lapse will prevail upon this Rectory; and that cannot be, but because 'tis made a Rectory, and presentative. It cannot be doubt­ed, but that the next Avoidance might have been granted over by the Bishop of London, before any Avoidance was.

Suppose the Bishop of London had died, and this Promotion had happened, should not the King have presented by reason of the Temporalties; and yet that is as much out of the Words of the Act, as this is? As to its being a Donative, 'twas said, That the present Rector doth not come in by Donation; and tho' 'tis true, That the King cannot present to a Donative upon such an occasion, the reason is, because the Promotion doth not make a Vacancy of the Donative, it doth not make a Cession, the Parson is not subject to Censures as other Rectors are; he is still in by reason of the Institution of the Founder, so that nothing can be inferr'd from thence: Suppose the Incumbency of a Donative had been immediately turned into a Rectory, would not that have subjected it to this Prerogative: 'Tis ad­mitted, That the promotion of the Rector did make an Avoid­ance; then was cited Princes Case, 8 Rep. Then suppose it a Donative as to Dr. Tennison, at the same time that the Church becomes vacant, the Patronage vests; and then the King's Pre­rogative shall take place, either codem Instanti, or before: But here the Right of Patronage did vest immediately by the Act; he that is to present when the Rectory becomes void, he is Patron: 'Tis like a Reversion granted cum acciderit, there is a present Interest vested; and there's no reason why it should not be so, in Case of this Act of Parliament.

The Stat. of 12 Car. 2. for confirming of Livings, makes the then Possessors full and perfect Incumbents, as this doth, were not these Benefices void, if the Parties were advanced to Bishop­ricks, [Page 185]and upon such promotions, did not the King present, undoubtedly he did.

Then 'twas argued, That 'twas 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; 'tis 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; 'tis 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, 'tis 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 uter (que) ducatur us (que) ad Gaolam dicti Domini Regis Com' praed' unde venerunt, et abinde us (que) ad locum Executionis trahantur et uter (que) eorum trahatur et super furcas ibidem [Page 187]per collum suspendantur et viventes ad terram prosternantur et uter (que) eorum prosternatur et interiora sua extra ventres eorum et utrius (que) eorum capiantur ipsis (que) viventibus ibidem comburantur, et quod ca­pita eorum et utrius (que) eorum amputentur quod (que) corpora eorum et utrius (que) 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. 'tis omitted, that Interiora includes it, In Bro coron' 128. 'tis 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, 'tis not said to be a Fact done 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 'tis plainly apparent to be contrary to his Allegiance; That all the whole Indictment shews it to be so, 'tis not weighing his Allegiance, 'tis 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 'tis 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, its enough. An alien E­nemy is not indictable in this manner; but here 'tis 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, 'twas 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; 'tis part of the Judgment upon the 25 Edw. 3. for compassing, &c. tho' for coining, 'tis 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 'tis 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 [Page 189]Entries 361. Cro. Car. 120, 122, 123. and a great number of Par­ticulars more, which might be cited.

Then 'twas 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, 'tis not Treason; that 'tis by reason of his Allegiance that he can commit Treason; and therefore 'tis, 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 262. and Spelman verbo ligeantia; and Calvin's Case, 7 Rep. expounding of that word: and the old Custumer of Normandy, cap. 43. And the said, and other Authorities, were inforced and amplified in such manner, as is not fit to be remembred.

Then 'twas urged, That as the Subject Matter of this Indict­ment did require these words, so the Reason of the Law in other Cases did warrant them to be necessary here: that vi & armis was necessary, till the Statute of Hen. 8. made it needless: and 'twould be strange, that an Indictment for a Trespass, setting forth an Assault and Battery, with force of Arms, should be ill for want of contra Pacem, and this should be good, without contra ligean­tie [Page 190]sue debitum: contra formam statut' is necessary, tho' the Fact be alledged, sufficiently appearing to be within a Statute Law. In­dictments are not to be made good by Intendment or Implication, Stamford 96. Trin. 18 Edw. 4.10. Furatus est without felonice, not good; Felonice abduxit without cepit, not good. So for a Rape, quod ipsam contra voluntatem suam carnaliter cognovit, with­out rapuit, is ill, 9 Edw. 4.26. and so is Dyer 304. Murdravit is necessary: No Words or Terms of Art are to be supplied by any other Phrases equivalent or tantamount in Sense, for the sake of certainty; because if such loose Descriptions should be allow­ed, 'twould subject Mens Actions too much to the Power of Con­struction, 2 Cro. 20, 142, 187, 527. And in all Indictments for Offences committed, between Decemb. 15. and Febr. 13. 1688. the Conclusion was contra pacem regni. Then was cited Vaux's Case 4 Rep. 39. 2 Rolls Abridg. 82.

Then 'twas said that there were express Authorities for the De­fendant; 3 Inst. 11. that the Indictment of Treason concludes thus, 1 Inst. 129. is the same, and Dyer 144. to the like effect. And what is said in the Margin of the new Dyer, is very remarkable as to Mary Queen of Scotland: Calvin's Case 7 Rep. 6. is full and express, as to the reason of the thing; and it is founded upon the Difference, between an Alien Enemy and a Subject, Courteen's Case, Hob. 271. Hobart is of Opinion, according to Calvin's Case, that Indictment against Alien amie, it must conclude contra debi­tum ligeantie sue.

Besides, here are no words which carry the same Sense, or are equivalent to it; Proditorie doth imply a Treachery or Fals­hood, and that he might be guilty of, and yet not act contrary to his Allegiance; for at that rate every Breach of Trust, as to the King, would be Treason: debitum ligeantie sue minime pon­derantes, is not sufficient; for a Man may not weigh his Allegi­ance, and yet not act contrary to it: then contra naturalem Do­minum suum supremum verum & indubitat'; those words in them­selves are not necessary, and anciently were not inserted: In old time 'twas only contra Dominum Regem; and 'twill be hard to say, that the use of words unnecessary should supply what is ne­cessary, and hath anciently been used. Those words do only import, that the late King was King of the Place where the De­fendant was born and lived; and cannot make it appear, that his Fact was contrary to the Laws of the Land, and the Duty of his Allegiance, as a Subject to him.

Then supposing it not necessary in the Conclusion; for, as some Presidents are in West's Symboleography, 'tis first, as contra ligeantie sue debitum levavit guerram, yet it ought to be in the Indict­ment, in one part or another. The formal Reason of the Facts being Treason, is because 'tis against his Allegiance, and that ought to be expressed; all the other Expressions urged on the o­ther side, are at the most but Argumentative, and do not di­rectly affirm the thing which is necessary to make the Offence.

As to the Presidents which are the other way, they are but few; those in the Reign of Hen. 8. and Queen Elizabeth, they are upon particular Statutes; as for denying the Supremacy; taking Orders under the Pope, and the like; they are not contra ligean­tiam in the nature of the Offence, and there contra formam statut' is enough: But no Answer can be given to the Case of Lopez in Calvin's Case, where the Judges met and considered, how the In­dictment should be, and agreed to be contra supremum Dominum suum in Anglia; and the Conclusion to be contra ligeantie sue debitum. Whereupon, for these and other Reasons, it was prayed, that the Judgment of Reversal given in the Kings Bench might be affirmed; and it was affirmed accordingly.

Joseph Eastmond Executor of Henry Eastmond and Samuel Nayle Appellants, Versus Edwyn Sandys Clerk, Respondent.

APpeal from a Decree of the Court of Exchequer: The Case was no more than this; The Parish of Yeovilton consisting much in Pasture Land, and the Respondent having been Rector thereof for Twenty years last past and upwards, and being intituled to the great and small Tythes, and all other Dues within the said Rectory, he did exhibit his Bill in that Court, against the Ap­pellant, Joseph in his own right, and as Executor of Henry his Father, and against the other Appellant Samuel Nayle, for Agist­ment Tythes, for depasturing and fatting their Oxen, and other unprofitable Cattle, within the said Rectory, from the Year 1677. to the time of exhibiting his Bill, which was in Michaelmas Term 1692.

The Appellant Joseph Eastmond by his Answer admitted, that he had Assets sufficient to answer the Plaintiffs Demands; and both of them admitted, that they and the Testator had fatted and de­pastured divers Oxen yearly upon their Lands in the said Parish, but said, that some of them were first used to the Plough, and afterwards fatted when turned off from the Plough.

The Court of Exchequer did thereupon, viz. May 26. 1696. de­cree Tythe Herbage to be paid for the Appellants and the Testa­tors Oxen and unprofitable Cattle, not used for the Plough; and also for their Oxen and unprofitable Cattle used for the Plough, for and during the time they were grazed and fatted in the Pa­rish for Sale, after they were turned off from the Plough. And now it was insisted on in favour of the Appeal, that the Decree was unjust; and then were quoted some Texts of Scripture a­bout muzzling the Ox, &c. And also it was urged, That that part of the Decree concerning Oxen once used to the Plough, was erroneous; and there were cited all the Cases in the Books for exemption of Plough-Cattle from Tythe Herbage, and that this was double Tything: And it was insisted on, that the Rea­son of the thing was against it in this Case, because the agistment of these Cattle, was necessary to sustain that labour which pro­moted the Grain, of which Tythe was paid; that this Priviledge extended to all such Oxen as ever had been used to the Plough; that the exemption did continue after they were forborn to be used at the Plough; for there was the same reason to continue the exemption afterwards, as there could be to allow it during the Interval, when they do not draw the Plough. And for [Page 193]these and other Reasons urged, 'twas prayed, That the Decree for Tythe quoad such Cattle as ever had been used with the Plough, should be reversed.

On the other side it was urged, That the said Decree is agree­able to the Law, and supported by many Resolutions in the Court of Exchequer, that there was a Reason for Tythe in this Case; be­cause these Cattle, tho' formerly used to the Plough, they ceased now to belong to it, and consequently Tythes became due; that there's a Difference in the nature of the thing; for when they feed in order to labour, the Parson hath a Tenth of the Benefit produced thereby, but when they are fatted only for Sale, 'tis otherwise; That this was a settled and allowed Difference in the Exchequer; That while the Oxen are working, no Tithe shall be paid for their feeding, because there is Tithes of other things arising by the Labour of such Cattle; but when they do no Work, and are turned off to be fatted and are graz'd, there Tithes shall be paid for the Herbage which they eat, they being no way beneficial to the Parson in any other Tithes: And many Cases in scacc' were cited to warrant this Distinction; and 'twas said, That none could be alledged to the contrary, wherefore 'twas pray­ed, That the Decree might be affirmed, and it was affirmed.

Magdalen Foubert, Widow, Grandmother and Administratrix of Katherine Frances Lorin de Granmare, Appellant, Versus Charles de Cresseron, Administrator, with the Will annexed of Katherine Granmare, Respondent.

APpeal from a Decree in Chancery, the Case was thus, Peter Lorin (Son of the Appellant) and Katherine de Mando­ville came to an Agreement to marry, and that the longest Liver should take all, whether Issue or not: A publick Notary took and entred that Agreement in his Book, and both Peter and Katherine subscribed the same so entred; and then being written fair, they signed it again, and the now Appellant and other Rela­tions subscribed it: They Intermarried, Peter was kill'd in Flan­ders, and left Katherine with Child; afterwards, she being near her time, thought fit to make her Will, which she wrote with her own hand in French, in these Words,

Quoy que je sois presentement en perfaite santé de corps et d'esprit, cependant ne sçachant de quelle maniére il plaira à Dieu de disposer de moy dans ma couche, Je trove à propos de marquer jcy més der­nieres volontés: En cas qu'il luy plaise de me retirer de ce monde, si c'est sa volonté de donner dés jours à mon enfant, Je luy laisse ge­neralement tout ce qui peut m'appartenir, & supplie trés humble­ment Madame Foubert, ma soeur Lorin et Mr' le Bas d'en prendre soin; J'espere que Mr. Foubert, & le Major, à la consideration de feu son paure Pere, luy rendront lés services dont il aura besoin, & que Dieu ne l'abandonnera point: Je l'en supplie de toute mon ame, comme aussi de benir toute la famille fait a Londres ce 16th de Novembre, 1693. par moy, Catherine de Granmare: After which the said Katherine annexed a Codicil to her Will, in these words, viz. En cas qu'il plaise à Dieu de retirer mon Enfant aussy bien que moy, Je donne à Madamoiselle le Bas ma bague de Diamans, mon Ecritoire garnie d'argent, & une boëte de rubants neufs; Je donne a Madamoselle Peireaus mon habit brun doublé couleur de paille, et mon habit Jaune; une demie douzanie de més Chemises: Je donne au fils à Jacob dix livres sterlings pour le mettre en Mé­tier, & à son pere ce qui se trovera dés habits de mon Mary: Je donne a Catharine Williams, ma filleule, dix livres sterlings pour la mettre en mètier Tout le reste de ce qui m'appartient tant en Meubles, que Linge, Vaissell d'argent, & Argent Monnoye, qui m'est dù, Je le laisse à ma soeur Lorin, & a mess' de Cresseron, pour etre egalle­ment partagé, entre eux; J'excepte seulement le portrait de mon Cher Mary, ma bague Turquoise, que Je donne à ma soeur Lorin, & la prie de garder l'une & l'autre tant qu'elle vivra: Je donne aussy a [Page 195]Monsieur Cresseron ma montre d'Or que le souhaite qu'il garde et porte pour l'amour de moy; fait à Londres ce 16th Novembre par moy Catherine Granmare.

Then she was deliver'd of a Daughter, and a few Hours after died, and the Daughter did survive her near two Years, and then died: And after her Mother's Death (there being no Exe­cutor named) Administration of the Estate of the Testatrix was committed during the Minority of the Child with the Will annexed; but the Appellant possest her self of the E­state, being about 600 l. Value. Then after the Child's Death, the Appellant as next of Kin, took Administration to the Child, and also to Mrs. Granmare.

The Respondent exhibited his Bill, claiming a Moiety of the Residuum by force of the Codicil, the Appellant by Answer in­sisted upon the Invalidity of the Agreement between Peter and Katherine, but that being waived, the Question arose upon the words of the Will, and particularly these, donner des jours, and 'twas insisted, That nothing was designed to the Respon­dent, but only in case the Child were still-born, or should die in her lying in; whereupon the Court ordered the Cause to be continued in the Paper, and that both sides should take time to procure the Opinion of French Men born, and acquainted with the Laws of France, and the Cause coming on again to be heard before the Lord Chancellour; and upon reading of several Opi­nions of French Gentlemen bred to the Laws of that Country, the Court declared, That the Respondent was well intituled to his Moiety of the Residue, after the particular Legacies, Debts, Funerals, and other Allowances deducted, and decreed the same accordingly.

It was argued on the behalf of the Appellant, That this De­cree was erroneous, that the proper Signification of those words, was no more than to give Life, that it was so translated at Do­ctors Commons, That that Translation does agree with the Opinion of several of the most learned Divines amongst the French Re­fugees here; That 'tis so interpreted in the Famous Dictionary of the French Academy, dedicated to that King, where the Words are as follows, viz. lés jours au pluriel, signifie la vie, That Days in the plural signifie Life, without any Determina­tion of time; That there are few Frenchmen of any Understand­ing, but will acknowledge, That by lés jours d'une personne, the Days of one (whether they be many or few in number) must be understood the Life, &c. That the Testatrix here could mean no other by Days, but Life; when she said, That in case it pleased God to take her out of this World, if it was his Will to give Days, to give Life to her Child, she left it all that belonged to her; knowing well, That if the Child was born alive, it must be maintain'd from that Moment, out of what was so left it, that it appeared from the Preamble of the Codicil, viz. [Page 196]In case it shall please God to take away my Child, as well as my self, then, &c. That the Testatrix never intended the Estate to go over, unless the Child died as well as her self in her ly­ing in.

Then it was argued from the Nature of the particular Lega­cies; they were of such a sort, as that they must be given with­out Sense or Reason, had she not supposed her Child's Death, as well as her own, in her lying in; for otherwise those new Ribbons must become old, which were intended as a Present to a young Gentlewoman, Clothes lockt up in a Trunk would have been of no use to Persons then in Distress, and the poor Orphan had gone too far in Years to learn a Trade. Then other Things are given as Tokens to be kept, and worn by them for her sake, as long as they lived: Now what Reason can be assigned for this, if she did not mean and suppose a Death in her lying in: From whence it was inferred, That the Intention of the Testatrix was to give all she had to her Child, in case she survived her; and if it did not survive her, but was taken away as well as her self, in her lying in, then her Intention was to give that same All (which she had given to her Child) to other People, as specified in the Will; and unless this were the In­tention, the Child must have starved, or lived upon Charity, not having the Property of what was left it; and the Condi­tion precedent, according to the Respondents Exposition, ex­cludes the Child till its Years of Discretion; wherefore 'twas prayed that the Decree might be reversed.

On the other side it was argued with the Decree, that the same was just; that no Objection could arise from the Nature of the other Legacies, or of this, as being reasonable or unreasonable; for that 'tis the Natural Right and Priviledge of every Person, to dispose of that which they have, at their pleasure, to do what they will with their own; a Priviledge so certain, that tho' 'tis used many times to ill purposes, yet the Law cannot inter­pose, nor restrain the Proprietor, no not to preserve him and his Family from ruine, as daily Experience shews: That it is agree­able to Law and Justice, and to true Piety, to see that the Will of the Dead be performed; and tho' the Law have ascertained how Estates shall go, when there is no Will, yet when there is a Will that disposes of it otherwise, then the Law would do; the Courts below will compel a Performance of such a Disposi­tion, as the Will directs.

Then 'twas said, That the Intention of the Testatrix, in fa­vour of the Respondent, is both Charitable and Prudent; He was her nearest Relation in England, and considering a great part of what she left was once her Husbands, she honourably gave as much to his, as to her own Relations, making her Husband's Sister, and the Respondent Charles, residuary Legatees to share equally, and so is the Decree: And to Reverse this Decree, and [Page 197]permit the Appellant to go away with the whole, (as she must, if the Decree be reversed) doth directly destroy all the Prudent and Charitable Intentions of the Testatrix, and carries the Estate where she never designed it, viz. to the Appellant.

Then 'twas argued, That the Court of Chancery had done well in taking the Opinion of Persons skilled and knowing in the Matter in question; that the Gentlemen of the Long-Robe of that Country, now here in London, did all give their Opi­nions; that according to their Construction of these words in a Will, it was an arrival to Years of Maturity or Age enabling to dispose; that unless the Child had lived to such an Age, as that she had been capable to give the same away, her Representative in this Case, could not be intituled to it.

Then 'was said, That words are to be interpreted according to the Sense and Acceptation of those which use them: That the Testatrix was a Native of France, and therefore this method of Inquiring into her Meaning was just and reasonable: That the Courts at Law have frequently consulted Merchants about the signification of Mercantile Terms, and Trinity House about Ma­rine Phrases; so in like manner Grammarians, Criticks, Chymists, and Artificers have been in the Court of Kings Bench consulted, according to the Nature of the Thing in question, upon words belonging to, and used in their respective Professions: That in case of words disposing of an Estate in a Foreign Language, by the Will of a Foreigner, the Judgment of Divines or Gram­marians could be no proper Direction to the Court of Chancery; but the Means of Information must be from those who were ac­quainted with the Rules of Interpretation in Case of Wills a­mongst those People: That the Opinion of those Gentlemen was sufficient to justifie the Decree.

But then it was further argued, That here the Meaning of the Testatrix could not be such as the Appellant would pretend, i.e. that she meant to give her Estate to the Respondent and others, only in case the Child she then went with should be still born, or if born alive, should dye with the Mother in her lying in, for these Reasons: First, For that she was so far from apprehending that the Child would either be still born, or if born alive, would dye as soon as her self, or in her lying in, that she expected 'twould live, and, as she hoped, to full Age, for she takes par­ticular Care of its Education; and earnestly recommends the same to the now Appellant, and others; prays God to bless it, and not forsake it; and hoped that all the Relations on the Fa­ther's side would, for the Father's sake, do it all the Services it should stand in need of.

Then taking it that the Testatrix did expect the Child to out­live her, (as unquestionably she did) if her meaning had been such as the Appellant hath put upon her words, the way to have it sure fixt to the Child, and then to the Appellant, had been to [Page 198]have made no Will at all; because if the Child survived the Mother but a day, or an hour, or never so little, the Law had vested the whole, first in the Child in its own Right, and upon the Child's decease, in the Appellant, as Administratrix to the Child.

Suppose the Child had outlived the Mother for a Month, or the like, what Interpretation could have been put upon this Will? 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, 'twas prayed that the Decree should be affirmed; and it was affirmed.

Philip Jermin and Sarah Ʋxor 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 [Page 200]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 'tis held in the Case of Law and King, 1 Saund'. 81. If nothing be answered to the vi & armis in a special Plea, 'tis 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 & [Page 201]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, 'twas said, That they were released upon Record; and, 'tis 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 'tis 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 'tis 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, [Page 202]is cited a President for it, in the Old Book of Entries, 110. which is a false Folio, for 'tis 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. 'tis held that no Attaint lyes upon an Inquest of Office; and therefore 'tis, 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. 'Tis 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: 'Twas now argued, that that was expresly against the Rule in Cheyney's Case, and that in the Case in Rolls; 'tis 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; 'twas 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 'twas 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 'twas repeated what was said before, that the Special Conclusion helps [Page 203]and prevents the General Intendment which otherwise would be had, as to the Damages being intire, and therefore 'twas 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 'twas 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 the Grantee; for 'tis plain from the whole Contexture of the Deed, that the Defendant was to have nothing in the Term till the Death of the old Man and his Wife: It was undoubtedly the meaning and design of all the Persons concerned, that the Defendant only should have the Re­sidue after his decease.

Then that the Law will not permit this, is plain from the Books, for that 'tis uncertain, how much, or if any of the term will remain, or be in being, at the death of the Grantor or Assignor; that the Law rejects such a small or remote Possibili­ty; that Man's Life in the Eye of the Law is of so great a re­gard, that 'tis presumed to be of a longer duration than the lon­gest term of years: That this is an old Maxim, upon which Thousands of Properties do depend, that tho' some Mens rea­son may not approve it, 'tis not to be altered but by the Legis­lature; that the Law first prefers Inheritances, or Estates descen­dible; then Freeholds, or Estates for Life; then Chattels real or Terms for Years: The Law values and regards, what a Man and his Heirs shall enjoy, before that which he himself only can en­joy; and what he himself may enjoy during his Life, before what he may have only for a certain limited time, the which he may by any supposal survive: These are known Truths. 32 As­sis. 6. Plowd, 521. If a Man be possessed of a Term for 100 years, and grants so many of them as shall remain at the time of his death, this is void for the uncertainty; otherwise if it be by Devise, because there nothing takes effect till death, and then 'tis certain how many years he is to enjoy it. 'Tis true, a Lease of Land for Forty years, to commence after a Man's death, is good, because 'tis certain that the Land shall be enjoyed for Forty years, but here non constat in certain, that this Deed could take effect for a year, an hour, or at all; Bro. tit. Lease 66. Plowd. 520. A Man possessed of a Term, grants it to another during Life, 'tis as much as during the whole Term (tho' never so long) because Life is presumed longer; so if he grant all the Term that shall remain after his Death, 'tis all void, because he reserves to himself the whole; for a greater includes the less; and for Life is the longest of the two: These things are not to [Page 204]be disputed: If both Premisses and Habendum had had this Li­mitation, the other side must have agreed it to have been void ab origine, and nothing to have passed by this Deed.

But then the Objection is, That the whole Term passes by the Granting Part, and then the Habendum is void, because 'tis repug­nant. To this it was answered. That in a Deed each part hath its proper Province: The Office of the Premisses is to express the certainty of the thing granted; the Habendum is to express the quantity and limitation of the Estate, 1 Inst. 6. Plowd. 196. Lofield's Case, 10 Rep. 107. And according to Littleton's Text, Sect. 370. all the parts of the Indenture are but one Deed in Law: from whence it was inferred, That the Habendum is ne­ver to be rejected, but when there is a manifest, express, and particular Contradiction; never when the Habendum doth appa­rently shew the Parties Intention.

Here the Lessee for years grants totum Cottagium suum, &c. The Grantee or Assignee (if there be no Habendum) hath but an E­state at will; whereas if he grants all his Estate and Interest in such a Cottage, there the whole Term passeth. This is the ex­press Opinion in Griffin's Case, 2 Leon. 78. Case 102. and there said to have been lately so adjudged in Wynnibank's Case in B. R. Now here's nothing in the Premisses, but what is general, not the whole Estate granted; nor is it said for how long time he shall enjoy it; and therefore the Habendum cannot be said to be repugnant or contradictory, because the first is not ex­press.

In Stukely's Case, Hob. 170, 171. upon the Case of Grants and Exceptions, is the learning of Habendums laid down, if it had been a Grant of all his Estate, Habendum after his Death, there the Habendum shall not frustrate the Grant; but if the Premisses give no certain or express Estate, there you may alter and a­bridge, nay, you may utterly frustrate it by the Habendum; these are the words of the Book: Then was cited 2 Rolls abr. 66. and 1 Inst. 48. b. and the same Case of Hodge and Crosse, in 3 Cro. 254, 255, where 'twas ruled, That the Habendum, tho' void, shall controul the implied Limitation in the Premisses; 'twas a Feoffment of Lands in London, Habend' to the Feoffee and his Heirs after the Death of the Feoffer: And 'twas argued in that Case, That the Habend' was void, but resolved, That no­thing passes, because it appears to be the Intent of the Party, that nothing should pass but in futuro; for the Premisses could pass nothing but by Implication, and that was nothing at all, because the Intent was to pass nothing presently; and tho' there were Livery made, yet that Livery could operate only secundum formam Charte, and therefore the whole was void; the reason was, because the first was General, tho' the Law would have given a particular Estate for Life by the Livery; yet because the Party gave none expresly by particular Words, the Habendum was not to be rejected; many of the Rules in Buckler and Har­vey's [Page 205]Case, 2 Rep. 55. are applicable to this: And altho' there be a Difference, where the Deed passes the Estate, and where Li­very or other Ceremony is requisite, as to many purposes; yet still the Distinction is, where the Premisses do not give all the Parties whole Interest, or some other particular Estate, but is Ge­neral, there the Habendum shall not be rejected as repugnant, 2 Rep. 23, 24. Baldwin's Case.

As to the Words, together with the said recited Lease, that can only mean the Indenture or Writing; for the Adjective recited, implies the Intent to be such: Recited signifies only a Rehearsal or Repetition of Words, spoken or written before; and so is Recitare Testamentum, Calvin's Lexicon, and 'tis joined with the other Writings and Evidences concerning the Premisses, and doubtful Words are to be construed according to the Na­ture of the things expressed and mentioned with them: Lease in it self imports only the Conveyance or Instrument of Convey­ance, not the Interest in the thing conveyed; if by Writing, 'tis called a Deed or Lease in Writing, if otherwise, a Lease Pa­rol: Thus is it explained in Blunt's Law Dictionary, and in Knight's Case, 5 Rep. 55. where all the Parts of it are described: A Man may give away his Lease, and yet retain his Estate or Term, he may deposite it as a Pawn or Pledge; and the Party in whose Custody 'tis so lodged, may maintain Trover or Tres­pass, if it be taken from 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 Life­time 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 'tis 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, 'tis to her and her Executors and Assigns, 'tis all that Cottage; 'tis 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 out­live 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; 'tis an old Rule and a good one, Ʋt 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 'twas 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 'twas 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, [Page 208]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 the rest of the Shares to be enjoyed according to his Will, and discharge the Fee-Farm Rent, with which they are charged: And in case he shall not do so, he gives the said Shares, he should otherwise enjoy by the Will, to and amongst all other his Chil­dren, and their Heirs, equally to be divided amongst them.

Simon Middl [...]ton died seized the 20 July, 1679. and after his death, Rebecca having attained her Age of 21 Years, died. He­zekiah after seisin of his Share, died under 21 Years, and un­married. Anne, one of the Five younger Children (which Five claimed the said Hezekiah's Share) by Lease and Release, settles the fifth part of the Share, late her Brother Hezekiah's, upon her self and the Plaintiff Bennet Swayne (whom she afterwards mar­ried) and after to the Children that should be between them, Remainder to the right Heirs of the Survivor of them two. Anne died without Issue; and Bennet Swayne after her death received the Profits of that fifth part of Hezekiah's Share, to the value of 20 l. That Benjamin Middleton was the only Brother of the whole Blood, and Heir of Hezekiah, Et si, &c.

Upon the arguing of this special Verdict, the Court below was of Opinion, That Benjamin was intituled, to Anne's Share of Hezekiah's Part, as he was Brother and Heir of Hezekiah, viz. That by the Will, the Fee-simple and Inheritance of a Thirty-sixth Part or Share of the New-River Water was given to, and vested in each of the youger Children; and that on the Death of Hezekiah, one of the younger Children, unmarried, under One and Twenty Years of Age, by the Clause (whereby the Shares of the youger Children dying before Twenty One, and unmarried, are given to the surviving Children, Share and Share alike) the five Survivors became Tenants in Common, and each was seized of a fifth part only for Life, and not in Fee: That the Reversion of Hezekiah's Share, expectant on the deaths of the younger Children, descended to the said Benjamin his Brother and Heir; and that he on the death of Anne, ought to have en­joyed that Fifth-part in Possession; and therefore the Profits of it received by Swayne, were due to Benjamin, and Judgment accordingly given there for Benjamin.

And now it was argued, That this Judgment was erroneous, for that by Virtue of the said Devise, the said Anne had an In­heritance in her part of Hezekiah's Share, for these Reasons, 1. It is well known and agreed, That a Part or Share in the New-River is an Inheritance, and therefore the Devise of all that Part or Share to any Person, is a Devise of that Part and [Page 209]Share to such Person and his Heirs; and is as much, as if a Person being seized in Fee of Lands, should say in his Will, he devises all his Estate in those Lands to J. S. it could be no question, but such a Devise would convey the said Lands to such Devisee and his Heirs. 2. The Share of Hezekiah was given to him and his Heirs, proportionably charged with the payment of the Fee-Farm Rent to his Majesty, and with 100 l. per Annum to Henry M. and his Heirs, and also with 150 l. to his Brother Benjamin; and being thus charged, upon his dying before Age or Marriage, his Share, with the Profits thereof thus charged, is given to his younger Brother and Sisters, the Sur­vivor and Survivors of them, Share and Share alike. Then 'tis observable, that the Fee-Farm Rent, payable to the King, his Heirs and Successors, is 500 l. per Annum; upon which account 'twould be very difficult to conceive, that the Testator, by this Devise of the deceased's Part, to the Survivors, Share and Share alike, did intend to such Survivors only an Estate for Life, when at the same time he subjects and charges it to and with the proportionable payment of the said yearly Fee-Farm, and the 100 l. to H. M. and his Heirs, which are Rent-Charges in Fee, and cannot reasonably be understood to be charged on E­states given barely for Life.

Besides, The Point here is upon the Construction of a Will, and the Testators true Intent and Meaning, in any part that is obscure, ought to be collected out of any other part or words of the Will that may explain it: Now, it being plain, that Hezekiah's Part was a Fee-simple, and thus charged, it seems to be as plain, that the very Inheritance of that Part, should upon his death go and remain to the Survivors, Share and Share alike; that is to say, That they should be Tenants in Common in Fee-simple of that Part, the same being thus chargable with the two Rents, and with the 150 l. to Benjamin; for otherwise this De­vise over (which was designed in their favour and for their benefit) might have turned to some of their Losses and Prejudice, for they might have paid the 150 l. to Benjamin, and have died, before they were re-imbursed out of Hezekiah's Share, had the same been only an Estate for Life; and it cannot easily be sup­posed, that he intended his youngest Children by the second Wife, should have a better Estate in his Shares of the New-River Water, devised as aforesaid, then the younger Children by the first Wife had, but that their Shares in it should be equal; but by this Construction, Benjamin by the second Venter must carry away Anne's Share from her Sisters and Brother of the first Ven­ter; here's no need of the common Care in construing Wills, not to disinherit an Heir by general words; for Hugh is dis­inherited by this Will, whether this surviving Interest be a Fee, or for Life: The Intention here was to make an equal Provi­sion for all the younger Children; the Part and Share of the Person dying, is the Inheritance in the Part and Share of the Person dying in the New-River Water. The three Sisters were [Page 210]to have their Shares discharged of the Fee-Farm Bent; but if this be only an Estate for Life, then those who were designed to have the least benefit by the Will, are to have the greatest, for they are Heirs to Hezekiah; whereas the Children by the first Venter seem to be most favoured by the Will, because they are to have their Bequests free from those Incumbrances. The Testator recites his own Scisin in Fee of so many Parts and Shares, and then devises those Parts in Fee, how can this Clause of Limitation to Survivors be construed to mean other­wise, then that the whole Fee of that proportion should sur­vive. The Cases cited in Rolls, on the other side, are only De­vises of the Land, and not of his Share.

Then 'twas said, That here was no Tenancy in Common; that 'tis true, equally divided, and equally to be divided, make a Tenancy in Common; but 'tis upon the account of the word divided; that to two equally, will not be so construed, 1 A [...]d. 29. and if the words equally will not, why should Share and Share alike; these words do not shew any partition of the E­state in Fact, nor in the Intention of the Testator; 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 'tis 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 [Page 211]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, 'twas 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 [Page 213]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, abs (que) 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 'tis, 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 [Page 214]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 presentatio­ [...]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 'tis likewise the same, it is William Theck­ston then Esq; and afterwards Knight, 'tis 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 'twas said. That 'twould be very hard to intend them several Persons, in order to avoid a Grant; that Veritas nominis tollit Errore [...] 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 'tis 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, 'twould have been well: Then was cited the Major of Lynnes Case, 10 Rep. 126. 'Tis 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, 'tis 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 'twas said, 'tis generally known, That the use of Sirname was not settled amongst us, till long after the Conquest; that before then they were named by their Titles, Offices. Places of Birth or Residence, or Employments, as doth appear plainly by Dugdale 1. Monast. 37. In those Days Miles was used instead of the Sir­name, immediately after the Christian Name, as Ego Wolwardus Miles, and many more such. Selden's Tit. of Hon. 637, 638. thus in 1 Monast. 166. Domim Algari militis, 2 Monast. 173.853. [Page 216]thus it was in the time of Hen. 2. then after Sirnames came to be used, this Title of Miles was also used as an Addition or Inlargement after the Sirname; Cambden's Treatise of Sirnames in his Remains, and Kennell's Parochial Antiquities, lately Printed at Oxford, in 4to. do shew this, That the Title of Knight came after the Sirname as an increase, not in Reu of it, as Merchant, Mercer, &c. Professor of Divinity, Law, Musick, Master of Arts, &c. for further Distinction sake. Then it was said, That this use of Sirnames holds not in case of Bishops, Dukes or Earls, for they add only the Place, and therefore the Descent or Accession of the Honour, comes instead of the Sirname, so is 2 Inst. 666. but now William Theckston, when made a Knight, he remains William Theckston still, he loses no part of his former Name, tho' the same be inlarged; if it had been otherwise 'twould have merged the Sirname, but his Title makes no Alte­ration therein at all: The Law doth require a Man to be named only by his Christian and Sirname, unless somewhat comes in lieu of the last, or the first be altered by Confirmation; a Grant is good, if the Party be so described, as that he may be known, tho' there be a Mistake in it, yet 'tis good, as a Grant to an Earl or Bishop by a wrong Christian Name, hath been held 2 Rolls Abr. Tit. Grants, 44. Dyer 376. 'tis the Identity of the Person, which the Law doth most regard and value; and therefore, since there was no presence, but that the same Person who grant­ed it to Pierse, was intended by and in the King's Patent; it was hoped, That such a Nicety should not lose the Subjects In­heritance in this Advowson, which he had bought for a valua­ble Consideration: Further it was said, this could not hurt up­on the Oyer of this Grant in this Record, as this Case stood, and should be further shewn anon.

Then it was argued, That either take the Case upon the De­claration and Plea alone; or take it as it stands upon the Let­ters Patents alone; either of these two ways, 'tis with the Sub­ject: If the Patent be considered by it self, there's nothing ap­pears to make it void, the King had a Power to grant, and there are Words sufficient to pass it. Then consider the Declaration and Plea, there's a good barr to the Title laid in the Declara­tion; so that the only Objection can be upon the Rules of plead­ing, as it stands all together; and the Query is, If P. hath own­ed or confess'd any such thing as is pretended of a Seisin in gross, in Eliz. anno 12. and if it be admitted, whether the King can take an Advantage of the Variance between the Patent set forth on Oyer, and that which is pleaded, the same being only pleaded by way of Inducement, whether the King can waive his own Title, and question the Defendants in this Case.

As to the first, it was said, That this Grant was not void by reason of any such Admission, the King declared his full Inten­tion, That Sir William should fully and freely enjoy this Ad­vowson, [Page 217]any Defects to the contrary notwithstanding; that 'tis not admitted in this Case to have been an Advowson in gross, in the 12th of Q. Eliz. no such thing doth appear; and then the Grant of Car. 1. is good; and if it did so appear, yet the Grant is good. The Plea doth say, that Car. 1. came to it by Descent, but that doth not admit her seized in gross: That Allegation in the De­claration is mear Surplusage and Immaterial, and cannot hurt the Party which makes it, tho' contradictory to, or inconsistent with his Title: Nor can it benefit the other side to deny it; for if he had denied it, it could have done him no good; and consequent­ly to admit it, shall not hurt him. Now 'tis not necessary in a Quare Impedit to alledge a time of Seisin; a Seisin generally in time of Peace is enough; then the not denying, admits only what is materially alledged. Suppose the Defendant had pleaded absque hoc, that Queen Elizabeth did present Tymmes modo et for­ma; and it had appeared upon the Trial, that he was presented in the 43d Year of her Reign, it must have been against the De­fendant. Even, where time is required to be alledged, another time may be proved, as in Trespass, Battery, &c. The most that can be pretended to, is, that here is an Admission of her being seized in gross after the Grant to the Earl; and it might be ap­pendant then, and afterwards got to the Crown by Presentations; there's no colour to suppose an admission of the time. Hob. 71. The Case of Sherly and Wood, and 2 Leon. 99. prove that neither alledging or confessing a thing immaterial shall hurt; the Rea­son is the same for both.

There was a plain Artifice in this Pleading; the Declaration men­tions a Presentation, prout per Inrolment, which cannot be, unless in the same Court; otherwise you must plead an Exemplification, Wymock's Case, 5 Rep. If the Declaration had been in the common usual way, setting out the Queen to have been seized generally, or to have presented generally, there had nothing appeared to have hurt this Grant; for it might then have been appendant; and if it might be so, it shall be intended to be so; for he is not bound to aver it to be appendant; for upon Oyer every thing shall be intended to make a Grant good, unless the contrary doth appear, 2 Cro. 679. he need not plead, that it was appendant at the time of the Grant to the Earl; Concessit is enough, and that tho' in general words, 35 Hen. 8. Bro. Pleading 143. Kelway 43. 1 Rolls Abridg. 405.

Then suppose it did appear that this Advowson was not appen­dant in the 13th Eliz. yet it doth pass: There is but one supposed Falsity, and that is Dr. Wilson's Presentation by Lapse, which is ad­mitted to be pleno jure; First, The Grant is full, express, and large e­nough, Know ye therefore, &c. All our Right, &c. as full words as can be used, without any restriction whatsoever. And as to the Suggestions, there's not any Mistake in them: 'Tis not suggested that 'twas ever appendant; not suggested that it did pass by those Letters Patents; nor that it came to Th. but only that he claimed it; and the word claim doth not always import a lawful Claim; [Page 218]for a Man is amerciable pro falso clamore: Here's as much Caution and Care in the penning of these Letters Patents as was possible, nothing but what is exact.

Suppose a Man doth claim an Advowson by a void Grant, and he brings a Writ, after the King hath presented; and the King says, Let my Clerk have it quietly for his Life, and you shall have a Grant from me, and shall be secure of all my Right for the future: 'tis not said, that 'twas Sir William's Presentation, but he sued a Writ so describing it.

'Tis admitted by Car. 1. that this Patent might be void, yet it was his Intention that Th. should have it for the future: This In­tent is as plain as words can make it; that he and his Heirs should for ever enjoy it, notwithstanding any defect in the Patent of Q. Eliz. 'Tis not only to restore an old Title, and make reparati­on for the wrong done by the King's Presentation, but in Case the old Title were defective, to make and give to him a good one: If it appears that the King's Intention were for passing it, it shall pass, notwithstanding a Mis-recital.

Suppose the Grant had been recited at large, and no more had been said but the King confirms it, would not that have been good: Then was cited the Earl of Cumberland's Case, 8 Rep. 166. the word therefore is in that Case too; yet because full words are superad­ded, it shall not be qualified by the Deed recited, and that is a much stronger Case than this: Hill. 22 & 23 Car. 2. Sir Robert At­kins versus Holton, 'tis in Ventris. And the pleading in Vidian's Ent'. agreed that King John's Patent was void, and King Edw. must have been deceived in his Grant, and his Intention might be there said to be only to make a Restitution. And a false Inquifi­tion turns a Man as much out of possession of a Franchise, as the King's Presentation doth out of a Patronage; but held there, that tho' King John's Grant was void, yet that of Edward was good, because the words were full and General, and the King shewed his intent that the Party should have the thing. But the other side have objected, That this is a qualified Intention according to the te­nor of the first Patent. To which it was answered, That the King did suppose that Patent to be defective, and his true intent was that Th. should have the Advowson. Besides, tho' it were in gross, yet it might have the reputation of being appendant, and it was the King's meaning to pass it, 6 Rep. 63. a small matter will make a reputation of an Appendancy. If a Man mortgages his Mannor, excepting the Advowson thereto belonging, 'tis become in gross; but when the Condition is performed, and the Deed avoided, 'tis appendant again; therefore it might be thought appendant; it might be some accident, which did sever it from the Mannor; yet if it had the reputation of being so, it might be within the King's intent to pass it, tho' it did not pass by the first; 'twas intended that some Advowson should pass, and here are express words to pass this: In Coke's Entries... Quare Impedit, it appears that this Advowson of Bedall was appendant.

It further appears by History, That this Simon Digby had com­mitted [Page 219]Treason, before the Church was void; and before Attain­der the Queen presented, that made it in gross, then the Attainder makes it appendant again; then tho' it might be possible that the Queen was seized in gross, yet if it were so, upon Digby's Attain­der she was seized of it as appendant: now if any thing might make it appendant, 'twill be hard to construe it void, where, for any thing that doth appear, it might be good. Such Declarations so subtle may ensnare any Defendant, and take away any Man's Inheritance. The Attorney should have taken Issue upon the Tra­verse, and that would have brought the whole Matter in question.

As to the mistake about Wilson's Presentation, that cannot vitiate against an express intent; the King's design was to determine the difference between his Incumbent and another; he would not have his Right in this Benefice to be questioned or disputed; for other­wise, there was no reason for Th. to take a Grant to avoid Contro­versie, and yet that new Grant to leave him in as bad or worse Condition; here's both Confirmation and Grant; and if so, what matters it, whether Wilson were presented one way or the other. Th. could not have been in a worse Condition, if he had miscarried in his Writ, the King designed to him all the Right which he had, and otherwise he was at the charge of procuring Letters Patents, to no other purpose then to be deceived. Besides, here was a good Consideration, tho' Th. had no right: a Surrender of void Letters Patents is a good Consideration: 1 Rep. 143. Altonwood's Case, and 5 Rep. 65. Lord Chandois's Case; the King there thought himself seized by virtue of the Surrender, which he was not, yet held good; so that 'tis not every Mistake that will avoid a Grant, when the In­tention appears, 1 Rolls Rep. 23. Therefore if there may be any thing given in Evidence, which might support these Letters Pa­tents, they shall not be adjudged void upon Oyer: and to make these void of Car. 1. they must construe those of the Queen void; and these cannot be adjudged void, because they are not before the Court; Letters Patents recited were never adjudged illegal; for notwithstanding this recital, there might be more words in them, which might make them good: 'tis inter alia, suppose it had been spectant' or existent' in Bedall, that would have passed the Advow­son in gross: 'Tis not inconsistent with any thing said in this Pa­tent of Car. 1. to say that the other of Queen Elizabeth contained or passed more, Mod. Rep. 194, 195. Hardres 231. the igitur is only nota continuationis, and doth not always suppose all that's prece­dent to be the Consideration, it can't well begin a Deed, and that is all: 'tis Exuberiori gratia, &c. 3 Leon. 249. 'Tis impossible to suppose or use more comprehensive words then in this Case, and therefore it was inferred that these Letters Patents of Car. 1. were good.

Then it was argued further with the Plaintiff in the Writ of Er­ror, that in this Case Mr. Attorney can take no advantage of either of these Mistakes in the Defendant's Plea, if they are such; for that 'tis only Matter of Inducement; and the Letters Patents needed not have been pleaded with a profert hic in curia, and therefore cannot hurt; If the Inducement be good to maintain the Traverse [Page 220]or make it material, that's enough; but still the Inducement is not traversable: 'Tis true, that generally speaking, a Deed or Grant after Oyer becomes part of the Plea, but still 'tis only Inducement. If a Defendant confesses and avoids, the Plaintiff shall not depend upon that which he confesses, but answer that whereby he avoids the Plaintiffs Title or Charge: This is no more then if they had traversed the Grant, which they could not do. In the Case of a common Person, suppose the Defendant's Title not full, yet if he traverses the Plaintiffs, that's enough: Form requires an Induce­ment to a Traverse, but the latter is only material for the Plaintiff to answer to; for nothing can be traversed, but what is material; now why should it not have been a good answer to their Declara­tion, to have said that Car. 2. presented by Lapse, absque hoc that Car. 1. died seized; for by this the Seisin or Presentation of Car. 2. had been avoided; and there's nothing else material in the Decla­ration; for the Seisin of Queen Elizabeth and Jac. 1. are not to the purpose; and if answered by the Defendant, it must have been a­gainst him, there had been a good Title for the King without it: then supposing it necessary to shew how it came out of Car. 1. the Attorney General can only take Issue on the Traverse of his dying seized; for that denies the whole Title that is material to be an­swered to: Now whatsoever shews that the Plaintiff hath no right to the thing in demand, is a good Plea, let who will have the true right: The true Title upon this Declaration is that Car. 1. pre­sented, and thereby became seized, and died seized; and the de­nying him to dye seized, is a denial of this Title; for if K. Car. 2. did present by Lapse, and K. Car. 1. did not die seized, 'tis with the Defendant; no Man is bound to answer that, which if he do, 'twill still be against him; but if a Man makes such an answer, as if true, the present Plaintiff hath no Title, 'tis enough: Then if it be true that no Right descended from Car. 1. to Car. 2. and that Car. 2. pre­sented only by Lapse, what Right can his present Majesty have: and all this is confessed by the Demurrer, if well pleaded; and 'tis no Objection to say, that the dying seized ought not to be tra­versed, but only the Presentation; for that is a mistake; in case of Land 'tis good; and an Advowson is an Inheritance descendi­ble in like manner, and Mr. Attorney thinks it a good Traverse; for he all along in his Declaration, alledges a dying feized from Queen Elizabeth downward: and there are several Presidents thus, Winch's Ent. 661, 662. and Winch. 912, 686, 692. and Buckler and Sy­monds, Winch. 911, 912. is of an Advowson in gross; and in the same Book 35, 59, are thus: A man may die seized of an Advow­son, as well as of Land; and if he doth not dye seized, it doth not descend; and the Seisin in gross is not to be traversed, as is 1 Anderson 269. and Hob. 102.

'Then 'twas said that the true Reason and Nature of a material good Traverse is well explained in Vaughan's first Case of Tufton and Sir Rich. Temple, and 1 Saund. 21, 22. and it is this, especially in a Quare Impedit, If any thing in the Count be travers'd, it must be such Part, as if true, is inconsistent with the Defendants Title, [Page 221]and if false or found against the Plaintiff, doth absolutely de­stroy his Title; nay, if the Traverse leaves no Title in the Plain­tiff, then 'tis good, whatsoever comes of the Defendants. Then the Difficulty is, If the King by his Prerogative may waive his own Title which is traversed, and insist upon the Deficiency of that which the Defendant alledges; and in the Case of the King and the Bishop of Worcester, and Jervis, in Vaughan 53. there 'tis said, That the King ought to maintain his own, and not to question the Defendants; he cannot desert that which he hath alledged for himself, and fall upon the Defendants Title; and Reason warrants such Rule for (tho' the King hath no Damages in a Quare Impedit notwithstanding his laying it ad dampnum, Hob. 23, yet) the Suit supposes an Hindrance and Damage to the King, and if the Right be not his, he hath no Cause to com­plain of the Defendant, tho' another hath: Every Man is to re­cover by his own Strength, and not by the Weakness of the De­fendants Pretensions; and if the Law be thus, then how can Mr. Attorney-General take Advantage of this upon Demurrer after Oyer, for now upon Oyer 'tis, as they say, become Part of the Defendants Plea, and consequently it must be part of the Induce­ment; and if so, he ought in that Case, to have taken Issue up­on the Traverse, which denied his Master's Title: Wherefore, upon the whole Matter, it was prayed, That the Judgment should be reversed.

On the other side, 'twas argued for the King, That this Judg­ment ought to stand, and as to the last point, 'twas said, That taking it for granted, the King could not traverse any Point of the Defendants Plea; yet certainly he might demurr upon the whole, in case it were insufficient; That now Oyer was craved, and had, the Deed did become part of the Defendants Plea, and must be taken as such; That tho' there had been no need of a Profert, yet when 'tis produced, 'tis such as he hath pleaded, and upon the whole, the Court is to judge, there being a Demurrer; That as the Case stood, the King might take advantage of both the Exceptions; That the Declaration of it self was good, and if the Plea be naught, the King ought to have Judgment for him; That every Plea is to be taken most strongly against the Party that pleads it; That here the Defendant had admitted K. Car. 1. well seized, that he ought to shew it out of him, otherwise the Plea was ill, that every Traverse must have an Inducement; That if upon the whole Plea, it did not appear that King Car. 1. parted with this Advowson, 'tis naught; That if by the Parties own shewing, it was manifest to the Court, That the King con­tinued seized, and what he doth further shew, no ways contra­dicts it, he could not traverse the dying seized, and therefore a Demurrer was most proper; and consequently, upon this De­murrer, they were let in to affirm, that nothing passed from the King by these Letters Patents of Car. 1.

Then it was argued, That this Grant was void, because it was to a Person then Esq; that Tunc Armigero, can have Reference [Page 222]only to the time of the Letters Patents, that a Man cannot be a Knight and an Esq; at the same time, that Knight is part of his Name, and the Title of Esq; is drowned in that of Knight, that the old Books are thus, 7 Hen. 4.7. 14 Hen. 6.15. 21 Edw. 4.72. 2 Inst. 594. 666. Hutt. 41. Bro. Tit. nosme. 33. 1 Cro. 372. That 'tis true, if a Deed of Feoffment be made to a Man by a wrong Name, and Livery be thereupon had, 'tis good; but all the Books make a difference between that Case, and where it is by Deed, where the Operation is altogether by Deed: Then was cited the Earl of Pembroke's Case, in Littleton's Rep. 181. and in Jones, 215, 223. the Court went upon the Reason, that the Ju­ry found him to be the same Person, Latch. 161. there they would intend him an Esq; at the time of the Commission, and a Knight at the time of the Return, and it was for Necessity-sake, for to prevent the avoiding of so many Trials, as had been upon that Commission.

Lord Ewre's Case, 2 Cro. 240. there 'twas held well enough, because sufficiently described; so in a Grant, if it cannot be in­tended otherwise than to the same Person, there 'tis well enough; but here they can never be the same: In Case of an Earl or Bi­shop, there 'tis understood, who is meant by the Description, there can be but one of that Title; but here the Plea saith, That he was not a Knight at the time; and Sir Thomas Ormond was at­tainted by the Name of Thomas Ormond, Esq; and ill for that Reason, 2 Rolls Abr. 43.198. Dyer 150.1 Leon. 159.160. the highest and lowest Dignity are universal, and the same in every Kingdom, 7 Rep. 16.20. Edw. 4.6. can any body say upon this Grant, That the King intended to pass this Advowson to a Man, that then was only an Esq; Selden. 682. the Addition of Esq; is drowned and merged in that of Knight, and Selden was a very competent and good Judge of this Matter: Then 'twas said, that the only way to salve this, which had not been urged for the Plaintiff, was, that he might be reputed a Knight, and a Name of Reputation will be sufficient to take by, and to this it was answered, That he who is reputed a Knight, and is none, cannot take by that Name: And besides, if he could, it should have been plead­ed by a per Nomen; in case of a Bastard, the Reputative Name must be shewn to make the Grant good; the Degree of Knight was formerly of Esteem in the Law, as upon a Writ of Right, if the Mise be joyned; and if a Peer be Party to any Issue at Law, triable by Jury, &c. As to the Objection, that a Grant to one by a Name of Dignity, which he really had not, viz. The El­dest Son of a Duke as a Marquess, and that a Grant to him by that Name is good, 'twas answered, That there was a real Re­putation, he takes place after all, real Marquesses as a Marquess by the Rules of Heraldry: There's a ground for it, from the Precedency given him by the common Use and Custom of the Realm, and they are named so now-a-days in Deeds, but ancient­ly Conveyancers were more Cautinos, and named them Esquires commonly called Marquesses; and even now, careful Men call [Page 223]them eldest Sons of such Dukes, &c. If a Reputation would have done it, the pleading should have been with a Cognit' et Re­putat' per Nomen: It is the name which intitles the Grantees to take, and otherwise they have no pretence to claim by such Letters Patents, no more than John or Thomas Theckston; and if the Person hath any other Name of Reputation, that ought to be shewn, wherefore it was hoped, That this was cause enough to affirm the Judgment.

Then it was argued, That this Grant was void as a Grant of an Advowson appendant, when upon the Record, it appeared to be an Advowson in gross; that the Defendant had admitted it an Advowson in gross, in Queen Elizabeth that he hath not only admitted, but confess'd it in almost direct terms, by saying, Bene & Verum est, that Car. 1. became and was seized in manner as in the Declaration; this is a full Confession, That the Queen was seized in gross, 'twas said to come to that King by Descent, and so there is no room left for Presumption or In­tendment, that it was by any wrongful or other Seisin. Then 'twas urged, That nothing passed to the Earl of Warwick, because not appendant, but in gross, and for this was cited Moor 45. Hob. 322, 323. and other Books; so that it doth not appear, that the King did intend to pass this Advowson; for in the Grant to the Earl of Warwick, there's no Grant of it by any express Name, which its probable would have been, had the same been intended; now to suppose it appendant, is to suppose against the Record, against both the Averment in the Count, and the Confession in the Plea, 'tis in general Words, una cum Advoca­tionibus, &c. nor does it pass by the Letters Patents of Car. 1. because it did not pass to the Earl, by those of Queen Eliz. this Grant is ushered in after all the Recitals, and those suppose the Advowson to have passed by the first; Igitur; wherefore, it must be upon Consideration of what is before alledged, this is at least an illative Word, and cannot begin an independent Substan­tive Clause of it self; so is Ʋlterius, 2 Browt. 132. If this Granting Part should be taken to be Substantive, and to have no Reference to what is precedent, all those Recitals would be vain and insignificant, and the King might as well have begun with the Words of the Grant. The King's Grants are to be ta­ken according to his Intentions, and those are to be expounded by the Recitals; then were quoted many Cases, as 5 Rep. 93. Hob. 120.203. Hutt. 7.2 Rolls Abr. 189.11 Rep. 93. and it was said, That here are many false Recitals, Sir Will, Theckston claims, that must be intended a lawful Claim, whereas he could not lawfully challenge any Right to this Advowson; That the King present­ed Wilson by lapse; The King was deceived in thinking that this passed to the Earl; The Agreement between Dr. Wickham and Sir William Theckston, was only to deceive the King: Here's no no­tice taken of the Advowsons being in gross; The Quality and Na­ture of the Advowson is totally concealed from the King; the Words notwithstanding any Defect, helps only want of Form; [Page 224]Here was a plain Artifice in the Matter; in Queen Elizabeth's Grant, it was Advowsons in General, &c. but when Car. 1. is to confirm that Grant, 'tis of that Church by Name; all the in­termediate Recitals between that of the first Grant, and the words of this new Grant, are dependent on that first: The King's In­tention, That Theckston should have it, is not absolutely, but secund' Thenorem & Intentionem of the former Patent; the King meant only to restore to him his old Right which he had by that Patent, notwithstanding the Presentations, 10 Rep. 110. all Facts recited in the King's Grant, shall be intended to be of the Suggestion of the Patentee. If there be several Considerations, and one false, and the King deceived thereby, it shall viciate the Grant, 3 Leon. 249. Voers Case cited in Legates Case; Fits. Tit. Grant, 58. 3 Leon. 119. If the Granting Words had stood alone, the Case had been more doubtful, but here they are all coupled. In all the King's Grants, there must be some Considerations for his Favour, and abundance of Cases were quoted concerning the King's Grants, Misrecitals, false Recitals, and Deceit, &c. Then it was strenuously insisted upon, That the Recitals and the Granting Clause, must be consider'd and judged of together; that the con­trary Opinion, is to make the Granting Part to be without any Consideration; 'tis to have a Conclusion without Premisses, an igitur without a Cause; That eadem servitia can never be intended new ones; That secundum tenorem must referr to the Appendant Advowson, and therefore the Advowson in gross here declared upon and pleaded to, can never pass by this Grant, and upon the whole it was prayed, That the Judgment might be affirmed.

It was replied on behalf of the Plaintiff in Error, That as to the Variance in the Title of Knight, no Answer had been given to the reasonable Distinction between the Case of Grants, and that of Writs and Indictments, that here was no Proof or Ap­pearance of a Diversity of Persons; That as to the Grant it self, secund' tenorem, could mean only a Reference to the Inte­rest or Estate granted by them, not to the thing or the Nature of it; That such Words signified only, as fully and largely, they had no express Relation to the Quality of the Advowson, whe­ther in gross or appendant; That by such Niceties, any or most Patents might be avoided, That Grants of Honours as well as of Interests, if questioned, must be under the same Rule; and the Considerations upon which they are grounded, may be sub­ject to Inquiry, if true or false, &c. That the Patent of it self, without Reference to the pleading was good, That the Judgment desired, was to condemn a Patent as void, because another Patent recited in it was so, which perhaps was not fully recited; and if it were, was not in Judgment before the Court; and the sub­stance of what was urged before, was in short repeated, and prayed, That the Judgment might be revers'd, and it was ac­cordingly revers'd; and Mr. Pierse (Scroope being dead) pre­sented Francis Pemberton his Clerk, who was admitted, instituted and inducted, &c.

FINIS.

THE NAMES OF THE Principal Cases.

  • 1. DOminus Rex & Viscount Purbeck. Page 1
  • 2. Duvall versus Price. Page 12
  • 3. John Duvall and Elizabeth his Wife, versus William Terry of London, Merchant. Page 15
  • 4. William Dolphin and Katharine his Wife, versus Fran­cis Haynes. Page 17
  • 5. Dormer Sheppard & al', versus Joseph Wright & al'. Page 18
  • 6. Whitfield & Ux' & al', versus Paylor & Ux' & al'. Page 20
  • 7. Thomas Arnold versus Mr. Attorney General, and Matthew Johnson Esq; Thomas Bedford Gent. Page 22
  • 8. Sir Richard Dutton versus Richard Howell, Rich­ard Grey, and Robert Chaplyn Executors of Sir John Witham decased. Page 24
  • 9. Philips versus Bury. Page 35
  • 10. Dr. William Oldis versus Charles Donmille. Page 58
  • 11. Smith & Ux', versus Dean and Chapter of St. Paul's, London, and Lewis Ruggle. Page 67
  • 12. The Countess of Radnor versus Vandebendy & al'. Page 69
  • 13. Dominus Rex versus Baden. Page 72
  • 14. Hall & al' Executors of Thomas Thynne, versus Jane Potter Administratrix of George Potter. Page 76
  • 15. The Society of the Governour and Assistants of the New Plantation of Ʋlster in the Kingdom of Ireland, versus William Lord Bishop of Derry. Page 78
  • 16. Sir Caesar Wood aliàs Cranmer, versus Duke of South­hampton. Page 83
  • 17. Sir Caesar Wood aliàs Cranmer, versus Thomas Webb. Page 87
  • 18. Jonathan Lord Bishop of Exeter & al', versus Sampson Hele. Page 88
  • [Page]19. Robert Davis versus Dr. John Speed. Page 104
  • 20. Wats & al' versus Crooke. Page 108
  • 21. Lee Warner versus William North. Page 110
  • 22. Briggs versus Clark ibid.
  • 23. William Bridgman & al', versus Rowland Holt & al'. Page 111
  • 24. Dominus Rex versus Walcort. Page 127
  • 25. Sir Evan Lloyd Bar. and Dame Mary his Wife, and Sidney Godolphin and Susan his Wife, versus Richard Carew Bar. an Infant, the Son and Heir of Sir John Carew Bar. deceased. Page 137
  • 26. Sir William Morley Knight of the Bathe, versus Peter Jones. Page 140
  • 27. Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset, versus Edward Nos­worthy. Page 146
  • 28. Sir Simon Leach & al', versus John Thompson Lessee of Charles Leach. Page 150
  • 29. Henry Earl of Lincoln, versus Samuel Roll & al'. Page 154
  • 30. John Fox Gen', versus Simon Harcourt Esq; Page 158
  • 31. Henry Lord Bishop of London and Dr. Birch, versus Attorney General pro Domino Rege. Page 164
  • 32. Dominus Rex versus Reginald Tucker. Page 186
  • 33. Joseph Eastmond Executor of Hester Eastmond and Samuel Neyle, versus Edwyn Sands Clerk. Page 192
  • 34. Magdalen Foubert versus Charles de Cresseron. Page 194
  • 35. Philip Jermin and Sarah his Wife, versus Mary Orchard. Page 199
  • 36. Bennet Swayne versus William Fawkner and John Lane Executors of B. M. Page 207
  • 37. Dominus Rex versus Episcop' Cestr' and Richard Pierse. Page 212

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this EEBO-TCP Phase II text, in whole or in part.