Hil. xvii. & xviii. Caroli 2. Reg. C.B. Ro. 1032.

THE Plaintiff sets forth, That whereas Tho­mas Temple Kt. and Bar. was seised of two third Parts of the Mannor of Burton Basset, to which one third Part of the Advowson of the Vicaridge aforesaid; that is, to present a fit Person to the same Vicaridge the first time, when the same then after should happen next to be void: And after the same first Presentation, then every third turn of the same Vicaridge being void for ever appertains, and did appertain, in his Demesne as of Fee.

And one Edward Wootton Kt. Lord Wootton, was seised of one other third part of the Mannor aforesaid, and of one third part of the Rectory Impropriate of Burton Basset: To which third parts one other third part of the Advowson of the Vicaridge a­foresaid: that is, to present a fit Person to the same Vicaridge the second turn, when the same Vicaridge then after should hap­pen next to be void: And after the same second Presentation, then every third turn of the same Vicaridge being void for ever doth appertain, and then did appertain, in his Demesn as of Fee.

That the said Thomas Temple was likewise seised of another third part of the Advowson of the Vicaridge aforesaid, that is, to present a fit Person to the same the third turn, when the same Vicaridge then after should happen next to be void: And after such third Presentation, then every third turn of the same Vica­ridge being void for ever. Ut de uno grosso per se, ut de feodo & jure.

That the said Thomas Temple being seised of the two third parts of the said Mannor: To which, &c. the said Vicaridge became void by the resignation of Thomas Freeman then last Incum­bent.

That thereupon the said Thomas Temple presented in his turn to the said Vicaridge one John Reignalds his Clerk, who was ad­mitted, instituted and inducted thereto, in the time of the late King James.

That the said Edw. Wootton, being seised of the said other third part of the said Mannor, and third part of the Rectory aforesaid, to which, &c. dyed thereof so seised at Burton Basset afore­said.

That after his death the said third Parts, to which, &c. descen­ded to one Thomas Lord Wootton his Son and Heir, whereby the said Thomas Lord Wootton became thereof seised in his Demesne, as of Fee

That being so seised, he levyed a Fine of the said third Parts, to which, &c. in the Common-Pleas 4. Car. 1. in octab. S. Martini to Ni­cholas Pay Esq; and Reignald Pay Gent. Com-Plainants, the said Lord Wootton, Mary his Wife, and one Henry Wootton Knight deforc.

That the said Fine was to the use of the said Lord Wootton and Mary his Wife, during their natural lives, and the longer liver of them. Then to the use of the first Son of the body of the Lord Wootton, and the Heirs Males of the body of such first Son begotten, and so to the sixth Son successively and the Heirs [Page 3] Males of their bodies, and so to every other the Sons of the said Lord Wootton successively.

Then for default of such issue, to the use of Margaret Wootton third daughter of the said Lord Wootton, and Mary his Wife, and of such Husband with whom the said Margaret should happen to marry for term of such husbands natural life (If the said Mar­garet should so appoint the same per aliquod scriptum sub manu & sigillis suis): And of the Heirs Males of her body begotten for part of her marriage portion, then to the use of the Heirs of her body begotten: And for default of such, to the use of the right Heirs of the said Thomas Lord Wootton for ever.

That by the said Fine and Statute of Uses, the said Lord Wootton and Mary his wife were seised of the said two third parts to which, &c. for their Lives with the Remainders over as afore­said.

That being so seised the said Vicaridge became void by the death of the said John Reignalds: And the said Lord Wootton pre­sented to the same in his turn one John Cragg, who was accord­ingly instituted and inducted tempore Car. 1.

That the said Tho. Temple, being seised of the other third part of the said Advowson in gross levyed a Fine among other things of the said third part of the said Advowson to Edward Peeter, and Thomas Peeter Esquires, Com-plainants, and the said Thomas Tem­ple and Hester his wife being deforceants

That this Fine was so levyed to the use of one William Peeter Esq; and his Heirs.

That the said William Peeter, being seised by vertue of the said Fine and Statute of Uses, the said Vicaridge became void by the Resignation of the said John Cragg and the said William Peeter pre­sented in his turn thereto one Robert Kenrick his Clerk, who was accordingly admitted, instituted and inducted tempore Car. 1.

That the said Tho. Temple being seised of the said two third parts of the said Mannor, to which, &c. dyed so seised at Burton Basset aforesaid.

That after his death the said two third Parts to which, &c. de­scended to one Peter Temple his Son and Heir, who was thereof seised, and dyed so seised.

That after his death, the same descended to the said Richard Temple his Son and Heir, who was, and yet is, seised of the said two third Parts

That being so seised, the said Vicaridge became void by the death of the said Robert Kenrick, which vacancy was the third vacancy of the said Vicaridge after the said first Presentation of the said Thomas Temple.

That the said Richard 12. Decembris anno 1654. presented to the said Vicaridge in his turn one Richard Manfell his Clerk, who upon his Presentation obtain'd the said Vicaridge, and was in actual possession thereof, and so being in possession a Statute was made the 25th. of April 12. of the King for confirmation and e­stablishing of Ministers in their Ecclesiastick Possessions, ordai­ned by any Ecclesiastick Persons before the 25th of December, then last past: And that the said Richard Manfell by vertue of the said Statute was real and lawful Incumbent and Vicar of the said Vicaridge.

That the said Lord Wootton and Mary his Wife being seised of the said third part of the said Mannor and Rectory aforesaid for their lives with remainder, as aforesaid, the said Lord Wootton so seised dyed at Burton Basset aforesaid.

That the said Mary survived him, and was thereof sole seised for term of her life by Survivorship. And being thereof so seised with Remainder, as aforesaid.

The said Margaret married the said John Tufton, and after the 8th. day of August 22. Car. 1. By a writing under her hand and seal produc'd in Court by the said John Tufton dated the same day and year appointed, that the said Fine leavyed as aforesaid in the 4th. year of the King should be, and the Conusees therein named should stand seised of the said third part, to the use of the said Margaret, and of the said John Tufton for term of his life, as by the said writing more fully appears.

By vertue of the said Fine and Statute of uses, the remain­der of the said third part, after the death of the said Ma­ry belong'd to the said John Tufton and Margaret for term of the said Johns life with remainder as aforesaid.

That the said Mary being seised of the said third Part with re­mainder over as aforesaid, the said Margaret at Burton Basset afore­said, dyed without issue of her body, and the said John Tufton sur­viv'd her.

That the said Mary afterwards at Burton Basset aforesaid dy­ed seised of such her Estate, after whose death the said third part remain'd to the said John Tufton, who was thereof seised for term of his life with remainder over to the Heirs of the Lord Woot­ton.

That the said Tufton being so seised in a Statute made at West­minster. begun the 8th. day of May in the 13th. year of his reign and there continued until the 19th. of May in the 14th. year of his reign: It was among other things enacted, That Parsons, Vicars, and other Churchmen being Incumbents of any Ecclesiastical Living [Page 5] should subscribe the Declaration or Recognition set forth in the said Act in manner as by the said Act is recited (which is set forth at large in the Pleading) upon pain of forfeiting the said Parsonage, Vica­ridge, or other Ecclesiastical Living, and to be ipso facto deprived of the same.

And the said John Tufton in fact saith, that the said Richard Mansell was in possession of the said Vicaridge of Burton Basset, and did not, as by the Act was required, subscribe the said Decla­ration, whereby he stood ipso facto deprived, and the said Vica­ridge became void.

That such vacancy of the said Vicaridge is the third vacancy thereof, after the aforesaid Presentation of the said Lord Woot­ton, and therefore it belongs to the said John Tufton to present a fit Person to the same, and that the said Bishop, Richard Tem­ple and Chamberlayne do hinder him so to do to his damage of fifty Pounds.

The said Bishop and Richard Temple plead in Bar. And first the said Bishop, That he claims nothing, but as Ordi­nary.

Then the said Richard Temple saith, the said Tufton ought not to have his Action against him, and taking by Protestation, that the said Tufton was not seis'd in his Demesn, as of Freehold for Term of his life of the third part of the said Mannor of Burton Basset, and of the third part of the said Rectory of Burton Basset aforesaid, for Plea saith,

That he the said Richard Temple was, and yet is, seised of the said two parts of the said Mannor, and of the Advowson of the Vica­ridge of Burton Basset aforesaid, as appertaining to the said two parts of the said Mannor in his Demesne as of Fee, and right, in the time of the King that now is,

That being so seised the said Vicaridge became void by the said Deprivation of the said Richard Manfell, by reason whereof he the said Richard Temple, being seised of the said Advowson as afore­said, presented to the said Vicaridge, the said Chamberlain, as was lawful for him, then traverseth absque hoc, That one third Part of the Advowson of the said Vicaridge, namely to present a fit person to the same Vicaridge every third turn of the said Vicaridge doth appertain to the said one third part of the said Mannor, and to the said one third part of the Rectory Impropriate of Burton Basset, as the said John Tufton hath alledg'd, which he is ready to aver, and de­mands Judgment.

And the said Chamberlaine the Clerk, taking by Protestation, that he doth not know any the matters in the Declaration to be [Page 6] true; and taking also by Protestation, that before the said Vi­caridge became void by the Deprivation of the said Richard Man­fell, and at the time it was so void, the said Richard Temple was, and yet is, seised of the said two parts of the said Mannor, and of the Advowson of the Vicaridge of the said Church of Burton Basset, as appertaining to the said two parts of the said Man­nor in his Demesne, as of Fee and right: And for Plea saith,

That he the said Chamberlain is Vicar of the said Vicaridge by the Presentation of the said Richard Temple, and was thereto ad­mitted, instituted and inducted.

Then traverseth absque hoc, That the said Thomas Lord Wootton after the death of the said John Reignalds, so as aforesaid presented to the said Vicaridge, being void in his turn, the said John Cragg, as the said Tufton hath alledg'd, and demands Judgment.

As to the Bishops Plea, his excuse is admitted, and the Plain­tiff hath Iudgment with a cessat executio against him, and a Writ to admit idoneam personam to the Vicaridge non obstante re­clamatione.

To the Defendant Temples Plea the Plaintiff demurs, and the Defendant Temple joyns in Demurrer.

To the Plea of Chamberlain the Incumbent the Plaintiff re­plys, That the said Thomas Lord Wootton after the death of the said John Reignalds Incumbent, as aforesaid, presented to the said Vicaridge then vacant in his turn as aforesaid, the said John Cragg, as the Plaintiff hath formerly alleag'd, Et de hoc petit quod inquiratur per patriam.

To which the Defendant Chamberlain doth not rejoyn any thing, nor joyns in issue, and therefore the Plaintiff hath Judgment to recover his Presentation, as against him, and a Writ to the Bishop non obstante reclamatione, and to remove the De­fendant Chamberlain from the Vicaridge, notwithstanding his Admission, Institution and Induction, but with a cessat executio un­til the Plea be determined between the Plaintiff and the De­fendant Temple.

THIS CASE in fact cannot be put shorter than as it hath been open'd to be upon the Record; It being a history of several Presentations to the Vicaridge of Burton Basset, and of several sup­pos'd Titles, so to present in the persons, who presented.

The Questions therefore in this Case do arise from the causes of the Plaintiffs demurring to the Defendants Plea, which as hath been insisted on, are two.

1. The first is, That in a Quare Impedit Plaintiff and Defen­dant are both Actors, and either of them, as their right happens [Page 7] to fall out, may have a Writ to the Bishop to admit his Clerk, That therefore either of them must make out a sufficient Ti­tle.

For it will be unreasonable, That a man should have a Writ to the Ordinary to admit his Clerk, who hath made no Title ap­pear to the Court, why it should be granted him.

That the Law is clear, the Plaintiff in a Quare Impedit must in his Count alledg a Presentation in himself, or those from whom he claims, and that therefore the Defendant should likewise so do.

But in this Case the Defendant in his Plea hath alledged no Presentation in any from whom he claims, or in him­self.

2. The second cause of Demurrer insisted on, is, That the Defen­dant hath by his Plea traversed the appendency alledged in the Plaintiffs Count of the third part of the Advowson of the Vica­ridge of Burton Basset to the third part of the Mannor, and third part of the Rectory of Burton Basset, whereas he ought to have travers'd the Presentation alledged by the Plaintiff in the Lord Wootton, by whom the Plaintiff claims, and not the appen­dency: And divers Authorities have been pretended, that so is the Law.

1. As to the first cause of Demurrer: It is true, that in a Qua­re Impedit both Plaintiff and Defendant may be Actors, and either have a Writ to the Bishop, as the right falls out to be.

But it is not true, that both are always Actors in a Quare Im­pedit: For if the Defendant hath presented his Clerk, and he be admitted, instituted and inducted before the Quare Impedit brought, the Defendant hath then no cause to have a Writ to the Bishop for the doing of that which is already done; and conse­quently in such Case the Defendant is no Actor but a bare De­fendant.

When a man hath presented, and his Clerk is instituted, and inducted, he is at the end of his work, and hath no more to do than to keep what he hath gotten; for thereby he hath a full pos­session, which is Title sufficient, if there be not a better.

But the Plaintiff, who is to recover that which he hath not, must shew a good Title before he can recover, or he shall never a­void the Defendants possession by shewing no Title, or an insuffi­cient, which is the same with none.

It can be neither Law nor Common Reason for the Plaintiff to tell the Defendant, you have no good Title, and thence to con­clude therefore I have.

The Plaintiff must recover if at all by his own strength, and not by the Defendants weakness, as is well urg'd and clear'd in Digbies and Fitzherberts Case in the Lord Hobart.

The Defendant hath alledged in his Plea a Title pro forma, and that he hath presented by reason thereof, and that his Clerk is instituted and inducted, which is sufficient for the present and future time, if no better Title be oppos'd to it, without alled­ging any other Presentation in himself, or any from whom he claims.

But if the Defendant were out of possession, as the Plaintiff is, he must then make out a good Title, as the Plaintiff now must, or else the Defendant should never have a Writ to the Bishop to admit his Clerk; and in such Case only it holde true, That the Defendant is Actor as well as the Plaintiff.

And in such Case he is to alledg a Seisin of the Advowson, as the Plaintiff must in himself, or those from whom he claims, which can never be done without alledging a former Presentation, that being the only actual Seisin of an Advowson; for the cause, why he should present to the present vacancy.

So as the not alledging a former Presentation will be no ob­jection to the Defendants Title, besides the Plaintiff hath alledg'd a Presentation both in his Ancessor Sir Thomas Temple of Reig­nalds, and in himself of Manfell for him, but I make no account of that, for if the Defendant will take advantage of a Title ad­mitted him by the Plaintiff, he must take it as the Plaintiff gives it, which in this Case the Defendant doth not.

For the Plaintiff by his Count makes the Defendants Ancestor and himself seis'd in their Demesne, as of Fee, of 2 Parts of 3 of the Mannor of Burton Basset, and of a third part of the Advowson of the Vicaridge of Burton Basset, as appendant to the said 2 Parts.

But the Defendant by his Plea saith he was seised in Fee of 2 Parts of 3 of the said Mannor, and of the intire Advowson of the Vicaridge, as appendant to the same 2 parts, and so presen­ted, which is another Title than that admitted by the Plain­tiff.

2. For the 2 cause of Demurrer, which is a point of more difficulty, I take it for Law, and shall accordingly prove it, That when the Defendant traverseth any part of the Plaintiffs Count or Declaration in a Quare Impedit, it ought to be such part, as is both inconsistent with the Defendants Title, and being found against the Plaintiff doth absolutely destroy his Title, for if it doth not so, how­ever inconsistent it be with the Defendants Title, the Traverse is not well taken.

To prove this I shall make use of 2 Cases urg'd at the Bar for the Plaintiff: but rightly understood, are fully against him.

The first is 10 H. 7. f. 27. 10 H. 7. f. 27. in a Quare Impedit the Plaintiff de­clared, that he presented such a one his Clerk, who was admit­ted, instituted and inducted, and after the Church became void, and he ought to present, the Defendant pleaded his Ancestor was seis'd of a Mannor, to which the Advowson was appendant, and presented, and that the Mannor descended to him, and that the Church being void, he presented and traversed, absque hoc, that the Advowson is in gross.

It was adjudged, that the Defendant ought to have traver­sed the Presentation, and not the Seisin of the Advowson in gross.

Whence it was inferr'd, that in the present Case the Presenta­tion alledg'd ought by like reason to have been traversed, and not the appendency, for traversing, the appendency in this Case differs not from traversing the Seisin in gross in that Case.

But the reason of that Iudgment, when rightly understood, is very clear.

1. The Plaintiff in the Quare Impedit (as the Case appears in the book) did not declare, that he was seis'd of the Advowson in gross, and presented (though perhaps if the Original Decla­ration did appear, it might be he did so declare) but declares, that he presented, and his Clerk was admitted, instituted and inducted, and the Church becoming void, it belong'd to him to present again.

For which reason, be alledging no Seisin in gross of the Ad­vowson, but only his Presentation, and that his Clerk was re­ceived, the Defendant formally ought to have traversed the Presentation, which was alledg'd, and not the Seisin in gross of the Advowson, which was not alledged.

But the Case is the same, whether he did, or did not, alledg in his Declaration, that he was seis'd of the Advowson in gross and presented.

For still the Plaintiffs Presentation was to be traversed by the Defendant, and not his being seis'd in gross, though it were true, that the Defendant, making Title by the appendency of the Advowson to his Mannor, the Plaintiffs Seisin in gross was abso­lutely inconsistent with the appendency, and therefore speciously to be traversed by the Defendant.

But that traverse left a Title in the Plaintiff not destroyed, and therefore was not good.

For whether the Plaintiff were seised or not of the Advow­son in gross, he presenting in the vacancy, and his Clerk be­ing admitted, instituted and inducted, he thereby gained a good Title by Vsurpation to present, when the Church became next void.

And that is the true reason in that Case, why the presentation which made the Plaintiffs immediate Title to present again, was to be traversed, and not his Seisin in gross of the Advowson, which was not material, when his Vsurpation gave him a Ti­tle, though he were not seis'd in gross before his Vsurpati­on.

Ander. 1 Part f. 296. p. 276.The next Case I shall use is as good authority out of the new Books as the other was out of the old. It is the Lord Buckhursts Case reported in the first part of the L. Anderson.

The L. Buckhurst brought a Quare Impedit against the Bishop of Chichester and T. Bickley for disturbing him to present to the Vicaridge of Westfield, and declared that the Advowson of the Vicaridge appertain'd to the Rectory of Westfield, whereof he was seised in Fee, and presented Maurice Sackvil his Clerk, who was thereto admitted, instituted and inducted, that the Vicaridge was a Vicaridge with Cure of the annual value of 8 l. And that the said Sackvil accepted another Benefice with Cure, by reason whereof, and of the Statute of 21 H. 8. the Vicaridge became void, and he presented and was disturbed by the Defen­dants.

The Bishop pleaded, that before the Writ purchased one Ri­chard Bishop of Chichester, his Predecessor, was seised of the Ad­vowson of the said Vicaridge in Fee as in gross, and collated to the said Vicaridge being void, one Maurice Berkley, who was inducted thereto, and the said Richard dying, the present Bishop was made Bishop, and became seised of the Advowson, and the Church became void by the said Sackvil's taking another Bene­fice with Cure, and he collated the said Bickley the other De­fendant, and traversed absque hoc, that the Advowson of the said Vicaridge pertained to the Rectory of Westfield modo & for­ma, as the Plaintiff alledg'd. And Bickley, the other Defendant, pleaded the same Plea.

Vpon these Pleas it was demurred, because the traverse to the Appendency was not good, as was alledged; and after much Argument, and many Cases cited, where the Appendency was traversable.

The Court resolved the appendency was not traversable in the Case, nor was it material, whether the Advowson were ap­pendant [Page 11] or in gross, as the book is express, so as nothing could be traversable in the Case then, but the Lord Buckhursts Presen­tation, which after the Induction of his Clerk, though it were by Vsurpation made him a good Title to present, when the Vica­ridge became next void.

Whence it follows, that if the Defendant could not traverse the L. Buckhursts Presentation of Sackvil, which was his imme­diate Title, the Defendant was remediless, but by a Writ of Droit d'Advowson.

And in the resolution of this Case of the L. Buckhust, the Case of 10 H. 7. before cited was principally relyed on, as warranting the Iudgment which it fully doth, it being adjudged for the same reason there, that the Seisin in Fee of the Advowson in gross was not traversable, but the Presentation was, as it was ad­judged in this Case, that the appendency was not traversable by the Defendant, but the Presentation.

And by the way I observe,Hobart. Dig­bies Case f. 102. that in the Report of the Lord Buckhurst's Case it is admitted, that the Plaintiff in the Case of 10 H. 7. did count, that he was seised of the Advowson in gross and presented, whereas I noted the Original Case in the Book is, that he counted only upon his Presentation, and probably it was so for the reasons given in Digbies Case by the Lord Hobart, that a bare Presentment is only militant, when so alledged by the Plaintiff, and may be in such a Case, as may prove the De­fendant to have right of presenting at the present avoidance, if no right be alledged by the Plaintiff, why he should present.

Whence I collect, that in both these cases of 10 H. 7. and this of the L. Buckhursts, though there were a manifest inconsistency in the first Case between the Plaintiffs Count, that he was seised of the Advowson in gross, and presented, and the Defendants Ti­tle, that he was seised of a Mannor, to which the Advowson was appendant; for it was impossible it should be appendant for the Defendant, and in gross for the Plaintiff.

And in the L. Buckhursts Case, who counted that he was seised of the Rectory of Westfield, to which the Advowson of the Vica­ridge belong'd, and the Defendant made Title, that he was sei­sed of the Advowson in gross, which Titles were directly inconsi­stent, yet neither the Seisin in gross in the first Case, nor the ap­pendency in the last Case were traversable, but the Presentation of the Plaintiffs in both, which made their immediate Titles to present at the next avoidance, whether there were a Seisin in gross, or an appendency or not, when they first presented.

As in these 2 Cases the true reason of the Law appears, why the Seisin in gross of the Advowson, nor the appendency of the Advowson alledged by the Plaintiffs were not traversable, but on­ly the Presentation.

Hob. Digbies Case f. 103.By these Cases the Lord Hobarts scruple in Digbies Case is satisfied, where he thinks, that if a man hath gained a Title by Vsurpation at the next avoidance, he must not declare, that he was seised in Fee, formerly of the Advowson, and presented; but must declare specially of the true Patrons former Presentation, and then the Church becoming void, that himself presented, lest otherwise he declaring, that he was seised of the Advowson in Fee, the Defendant should trice him by traversing his Seisin, which was false, when in truth he had a right to present by Vsur­pation, for by these Cases it is clear, that the Seisin in gross, nor appenden [...]y are traversable, though alledged by the Plain­tiff, when he hath gained a Title by Usurpation, but the Presenta­tion ought to be traversed.

I shall for clearing this Learning shew in the next place, when the Seisin in gross, or appendency of the Advowson alledged by any Plaintiff in his Count is traversable by the Defendant, and not the Presentation, and the true reason of the difference.

27 H. 8. f. 29.In a Quare Impedit, the Plaintiff declared, that I.S. was sei­sed in Fee of a Mannor, to which the Advowson was appendant, and presented, and after infeoffed the Plaintiff of the Mannor, whereby he became seised, until the Defendant disseised him, and during the Disseisin, the Church became void, and the Defendant presented, the Plaintiff entred into the Mannor, and so recon­tinued the Advowson, and the Church is again become void, whereby the Plaintiff ought to present.

The Defendant pleads, that a stranger was seised of 4 Acres of Land, to which the Advowson is appendant, and presented and of the four acres infeoffed the Defendant, and the Church being void it belongs to the Defendant to present, and takes a Traverse absque hoc, that he disseised the Plaintiff of the Mannor.

This Traverse was adjudged not good; for the disseisin, or not disseisin of the Mannor was not material to intitle the Plaintiff to the Quare Impedit; but all his Title was by the appendency of the Advowson to the Mannor, and therefore the Traverse ought to have been, and was so resolved to the appendency, which de­stroyed the Plaintiffs intire Title to present, and also inconsistent with the Defendants appendency of the Advowson to his four acres.

I shall only put one Case more to the same purpose out of the new Books reported by the Lord Hobart.

Sir Henry Gawdy Kt. brought a Quare Impedit against the Arch-Bishop of Canterbury, Sir William Bird, and Humfrey Rone Clerk,Sir Hen. Gan­dies Case Hob. 301. and declared that Sir Rich. Southwell was seised of the Mannor of Popenho in Norfolk, to which the Advowson was appendant and presented, and his Clerk was instituted and inducted, that South­well bargained and sold the Mannor to one Barow, who being seised, the Church became void by the death of Southwels In­cumbent, and so continued for eighteen months, whereby the Queen in default of the Patron, Ordinary and Metropolitan presen­ted by Lapse one Snell, then by mean Conveyances derives the Mannor to which the Advowson is appendant to himself, and that by the death of Snell it belongs to him to present, and is distur­bed by the Defendants.

The Archbishop claims nothing, but as Ordinary, Sede vacan­te of the Bishop of Norwich.

Sir William pleaded ne disturba pas.

And Rone the present Incumbent pleaded, that he was Parson by the Kings Presentation, and that long before Southwell had any thing in the Mannor Queen Eliz. was seised of the Advowson in gross in right of the Crown, and presented Snell; that the Advowson descended to King James by the death of the Queen; and he being seised, the Church becoming void by Snell's death, pre­sented the present Incumbent, who was instituted and indu­cted.

And traversed absque hoc, that the Advowson was appendant to the Mannor of Popenho, and thereupon Issue was joined.

In this Case also the Traverse of the appendency by the De­fendant was clearly good, and so admitted, for the Plaintiff Gau­dy had no more, nor other Title to present than by the appenden­cy of the Advowson to the Mannor, and the Incumbents death, and the appendency to the Mannor was inconsistent with the De­fendants Title by the Advowson's being in gross.

These two last Cases fully prove the Rule by me taken, and which will conclude the Case in question, that the Traverse is well taken to the Appendency of the Advowson, when it is all the Plain­tiffs Title to present, and is inconsistent with the Defendants.

But in this Case of Gawdys, the Iury found specially, that Southwell was seised of the Mannor with the Advowson appendant and presented, and that the Incumbent dying 2 Feb. 1588. the Queen the 15th. of Feb. in the same year presented Snell to the Church then void, per mortem naturalem ultimi Incumbentis ibidem [Page 14] vacantem. Et ad nostram Praesentationem jure praerogativae Coro­nae nostrae Angliae spectantem, and her Clerk instituted by Letters of Institution, running per Dominam Reginam veram & indubi­tatam, ut dicitur, patronam.

And after the death of Snell, King James presented Rone in these words, ad nostram praesentationem, sive ex pleno jure, sive per lapsum temporis, sive alio quocunque modo spectantem: and re­ferr'd to the Court, whether the Advowson were appendant to the Mannor or not; It was adjudged.

1. That the Advowson remained appendant notwithstanding the Queens Presentation.

2. That her Presentation could not be by Lapse, for her Presen­tation and Institution and Induction were in the same month of Febr. wherein the voidance was.

3. If the Queen had presented by Lapse it had made no severance of the Advowson.

4. That the Queens Presentation made no Vsurpation, because she presented, as supposing she had a Title in right of her Crown, as appeared by the form of her Presentation, which is very re­markable, and therefore her Presentation was meerly void; for it shall not be intended, the Queen took away anothers right against her own will and declared intention.

5. For the same reason King James his Presentation of Rone, who by the form of his Presentation supposed he had a good Title, when he had none, was also void: and this agrees with the Re­solution in Greens C. the 6th. Rep. that the Queens Presentation made as by Lapse, when she had no such Title to present by lapse, but another Title either in right of her Crown, or by Simony, or some other way, was void, because she was mistaken in her pre­sentation: So if she presents by reason of some supposed Title in her Letters of presentation, when indeed she had no Title at all, the Presentation is meerly void, and though such Presenta­tion make a plenarty, so as to avoid Lapse, yet the right Pa­tron is not out of possession, but may present 7 years after, and if his Clark be inducted, the former presentee is immediately outed.

Hence it is to be noted as a point very observable in this Lear­ning, that though the King may present by Usurpation, yet he shall never present by Usurpation if in the Letters of Presentation, he present by some Title which he hath not; but if he present gene­rally, making no Title at all by his Presentation, and his Clerk be received, and dyes, he hath gained a Title by Usurpation.

But if the King declare in a Quare Impedit, that he was sei­sed [Page 15] of the Advowson in gross, or as appendant to a Mannor and presented, if he had presented before by Usurpation, the Defen­dant shall not traverse his Seisin of the Advowson or appendency at all.

So is it in the Case of a Common Person also, as appears in the end of the Case, 10 H. 7. where it is said, It was agreed by the Court, that if the Plaintiff entitle himself to an Advowson, as appendant to a Mannor, and sheweth a presentment, as ap­pendant (for so are the words) and the Defendant shews another Presentment, without that that the Advowson is appendant, this Traverse is good, for if it be not appendant, as the Plaintiff declares, it is sufficient to destroy his Declaration; and so there both are traversable, but otherwise, as the Case is here, viz. the principal Case first cited.

I conceive the meaning clearly to be that in the principal case, the Seisin in gross of the Advowson alledged in the Declaration was not traversable, but the presentation, which might be by Vsurpation, and made a good Title, though the Plaintiff were not seised in gross of the Advowson.

But if the Plaintiff declare the Advowson to be appendant to a Mannor, and withal sets forth in his Declaration the Letters of Presentation to the Church as appendant, there the Defendant may traverse either the appendency or the Presentation; for though the Advowson were appendant, yet if the Plaintiff presented not, he had no Title.

Whence I infer, that if the Plaintiff had only counted a Seisin of the Mannor, to which the Advowson was appendant without shewing the presentment to be to the Church by vertue of the ap­pendency; the traverse of the appendency had not been good, but it must have been of the Presentation, which might have been by Usurpation, notwithstanding the alledging barely of the appen­dency, as is resolved before in the point in the Lord Buckhursts Case in Anderson, and in the principal Case of 10 H. 7.

But when the Count is of the appendency of the Advowson, and also of the Presentation to it as appendant there, there could be no Usurpation according to the Resolutions in Sir Henry Gau­dies Case in the Lord Hobart before cited, and in Greens Case in the 6th Report of the Lord Cook.

And the not observing of this difference made the Reporter at the end of th [...] L. Buckhursts Case deny this latter part of the Case in 0 H. 7. because it was clearly against the reason of the principal Case in 10 H. 7. and against the Resolution of the L. Buckhursts Case, if the words of shewing the presentment to [Page 16] have been as appendant had been omitted in the Case.

But those words make the latter Case in 10 H. 7. exactly to a­gree with the Judgments both in Sir Henry Gaudies Case in Hob. and Greens Case in the 6th. Rep.

15 H. 6. Fitzh. Quare Imped. num. 77.To the 4 first Cases may be added the Case of 15. H. 6. where the Plaintiff counts in a Quare Impedit, that his Ancestor was sei­sed of a Mannor, to which the Advowson is appendant, and pre­sented and dyed, and that the Mannor descended to the Plaintiff, and the Church became void, whereby he ought to present: the Defendant pleads, that long after the Presentation alledged by the Plaintiff, the Defendant was seised of the Advowson in Fee, and presented such a one, and after the Church became void, and he presented the present Incumbent, and this Plea was allowed a good plea by the Court, without answering to the appenden­cy alledged by the Plaintiff, which was in effect avoided by the Defendants Presentation after: And in this Case the Plaintiff was without remedy, unless he could traverse the Presentation alled­ged by the Defendant, otherwise than by his Writ of Droit d'Ad­vowson.

Crook 2. Car. f. 61. Sir Greg. Fenner vers. Nicholson & Pasfield.As also the Case in Crook. If the Plaintiff make Title to pre­sent, as being seised of an Advowson in gross, or as appendant, and the Defendant make Title, as presented by reason of a Si­moniacal presentation made by the Plaintiff, and thereby a Devo­lution to present to the King, under whom the Defendant claims, because the Defendant doth admit the Advowson to be in gross or appendant in the plaintiff, and that neither of them is inconsistent with the Title, made by the Defendant, he shall not traverse the Seisin in gross, nor the appendency; but because somewhat else is necessary to give the plaintiff right to present, that is the vacan­cy of the Church, either by death or resignation or deprivation, which the plaintiff must alledg, and which are inconsistent with the Defendants Title, who claims not by vacancy, by death, resig­nation or deprivation, but by the Simony; therefore he shall tra­verse the vacancy alledged either by death, resignation or depriva­tion, as the Case falls out, without one of which the plaintiff makes no Title, and if the present vacancy be by either of them, the Defendant hath no Title.

Now to apply these Cases to the question before us, whether the Defendant should have traversed the Presentation of the Lord Wootton alledg'd by the plaintiff, or the appendency (which he hath done) to the third Part of the Mannor, and third Part of the Rectory of Burton Basset. It seems clear, That in all Cases of Quare Impedits, the Defendant may safely traverse the Presentati­on [Page 17] alledged in the Plaintiffs Count, if the matter of fact will admit him so to do: for the Plaintiff hath no Title without alledging a Presentation in himself, his Ancestor, or those from whom he claims the Advowson; but the Defendant must not traverse (that is deny) the Presentation alledged, when there was a Presentation, for then the issue must be found against him.

The Lord Wootton therefore having presented, by what right soever it was, there was no traversing his Presentation.

But by what right soever the Lord Wootton presented the Plaintiff hath no right to present, unless the Lord Woottons Pre­sentation were by the appendency to the third part of the mannor, for he deriving no title to the Advowson as in gross, nor any o­ther way, but as belonging to the third part of the Mannor, which he derives from the Lord Wootton: Therefore nothing is traversable by the Defendant but the appendency, which, if found against the Plaintiff, he hath no colour of Title.

Pasc. 19. Car. 2. Rot. 484. C. B. Henry Edes Plaintiff in a Quare Impedit against Walter Bi­shop of Oxford.

THat he was, and is, seised of the Advowson of the Church of Chymer in gross, in Fee, and thereto presented Will. Paul his Clerk, who was instituted and inducted accordingly, That af­ter the Church becoming void, and so remaining by the death of the said William Paul, and it belongs to him to present, he is hindred by the Defendant.

The said Bishop by Protestation, saying the Church did not become void by death of the said William Paul, pleads that the said Church was full of the said Paul.

The said W. Paul was created Bishop of Oxford, whereby the said Church became void, and the right of presentation devolv'd to the King by Prerogative.

25 H. 8. c. 21.Then pleads the clause of the Act of 25 H. 8. which impowrs the Archbishop of Canterbury to give faculties and dispensations as the Pope did at large.

That after and before the Writ purchased Decimo of the King the said William Paul dyed at Oxford.

That after his death, the Defendant was elected Bishop of Ox­ford, and after and before the Writ purchased, viz. the 27. of No­vember 1665. Gilbert now Archbishop of Canterbury and Primate of all England by his Letters of Dispensation according to the said Act, and directed to the said Walter, the Defendant, now Bishop, under his Seal then elect, and upon the Bishops petition of the means of his Bishoprick.

Graciously dispensed with him together with his Bishoprick, the Rectory of Whitney in the Diocess and County of Oxford, which he then enjoyed; and the Rectory of Chymer aforesaid, which he by the Kings favour hoped shortly to have, to receive, hold, retain and possess in Commendam, as long as he lived and continued Bishop of Oxford, with, or without Institution and Induction, or other solem­nity Canonical, and to take and receive the profits to his own use without Residence. Quantum in eodem Archiepiscopo fuit, & jura regni paterentur.

The Letters of Dispensation not to be effectual without the Kings Confirmation.

That the King after the 28 of Novemb. 17. of his Reign under the great Seal to the said Church, so void by Cession, presented the Defendant, then as aforesaid, Bishop Elect, and after, that is, the 28. of Novemb. 17. Car. 2. the King by his Letters Patents under the great Seal, dated the same day and year, and duly in­rolled in the Chancery according to 25 H. 8. did confirm the Let­ters of Dispensation, and that the said Bishop might enjoy all things contained in them according to the form and effect there­of with clauses of non obstante aliquo Statuto, or other mat­ter.

Then averrs, that the cause of Dispensation was not contrary to the word of God, and that the Pope in H. 8. time did use to grant the like Dispensations to the Kings Subjects, which he is ready to averr, &c.

The Plaintiff replys, That true it is William Paul Praedict. was elected Bishop of Oxford, being Incumbent of Chymer, but that after his election, and before his creation, he 2 Decemb. 1663. ob­tained Letters of the Archbishop under his seal of Faculties for causes therein mentioned of Dispensation to hold the Church of Brightwell, and the Rectory of Chymer, both which he then law­fully had, and to retain the same with his Bishoprick, after his consecration, &c. durant. vita sua natural. & Incumbentiâ suâ in E­piscopatu praedict. & quamdiu eidem Episcopatui praeesset.

The King 9. Decemb. 15. of his reign confirmed the Letters Pa­tents under the great Seal with non obstante according to the Ordi­nary form.

30. Decemb. 15. Car. 2. was created Bishop.

Vpon this Replication the Defendant demurs, and the Plaintiff joyns in Demurrer.

Note the Defendant doth not shew to whom he was presen­ted.

He doth not say, that he enter'd by vertue of the Presentation of the King in Chymer.

In discussing the Case, as it appears, upon this Record, I take it granted.

1. If a person Incumbent of one or more Benefices with Cure be consecrated Bishop, all his benefices are ipso facto void.

2. Vpon such voidance the King, and not the Patron is to pre­sent to the benefices so void by Cession.

[Page 20] 3. That any Dispensation after the Consecration comes too late to prevent the Voidance.

4. That the Pope could formerly, and the Arch-bishop now, can sufficiently dispense for a Plurality by 25 H. 8.

I shall therefore first make one general Question upon the Case as it appears.

Whither William Paul, Rector of Chymer, and elected Bishop of Oxford, and before his Consecration dispensed with by the Arch­bishop to retain his said Rectory with the Bishoprick, and having the said Letters of Dispensation confirmed by the King, and inroll'd Modo & forma prout by the Record, did not by virtue of the said Dispensation and Confirmation prevent the voidance of his said Re­ctory by Cession upon his Consecration?

For if he did, the Rectory became not void until his death, and by his death the Plaintiff being Patron, hath right to present.

To determine the General Question, I shall make these Questions, as arising out of it.

1. Whether any Dispensation, as this Case is, be effectual to prevent an avoidance after Consecration?

2. Whether the Archbishop hath power, with the King's Confirmation, to grant such a Dispensation?

3. Whether this Dispensation in particular be sufficient to prevent a voidance of Chymer after Consecration of the late Wil­liam Paul.

1. This Case differs from the Bishop of Ossory's Case in Sir J. Davies's Reports, who had a faculty accipere in Commendam with odd power, and executed it by collating himself into a Li­ving void by Lapse.

2. It varies from the Case of Colt and Glover in the Lord Hobarts Reports, and the Dispensation there to the Bishop elect of Lichfield and Coventry, which was to retain one Benefice which he had; and propria authoritate capere & apprendere as many as he could, under a certain value.

The defects of that Dispensation are numerous, and excellent­ly handled by the Lord Hobart in that Case of Colt and Glover. But in our Case there is no affinity with the defects of those Dispensations, but is barely to retain what legally was had be­fore.

Obj. 1 Per Thyrning. The Bp. of. St. Davids Case. 11 H. 4. f. 37. b. 38. a. Rolls f. 358. ob. 1. 11 H. 4. f. 60. B. per Hill.An Incumbent of a Church with cure being consecrated Bi­shop, his Living was void by the Law of the Land; therefore the Pope could not prevent the voidance after consecration, for then the Pope could change the Law of the Land, and if the Pope could not, the Archbishop cannot.

The better opinion of that Book 11 H. 4. is contrary, and Answ. 1 so agreed to be in the Irish Case of Commendams, and Rolls his opinion is grounded only upon 11 H. 4.

If an Incumbent with cure take another Benefice with cure, the first is void by the Law of the Land, and the Patron hath right to present; therefore the Pope could not grant a Dispensation, nor the Arch-bishop now can, to hold a Plurality, for that were to alter the Law of the Land, and to prejudice the Patron. But the Law was and is otherwise, therefore that reason concludes not in the case of a Bishop.

A second reason in that case of 11 H. 4. is, that such a Dispensati­on Obj. 2 cannot prevent the avoidance,11 H. 4. f. 59. bi per Skreen. because there is no use of it until Consecration; for before the Incumbent retains his Living without any Dispensation, and when consecrated, his Benefices are void, and then it is too late to dispense as is agreed.

This reason is as effectual against a Dispensation for a Plura­lity, Answ. 2 for before a man takes a second Living, there can be no use of it, and after by this reason it comes too late, for the Patron hath right to present.

It was in that great Case endeavoured to avoid the pressure of this Argument by saying the Dispensations in cases of Plura­lity were not alike with that of retaining the former Benefice, when the Incumbent was created Bishop, because in the case of Plurality there was no actual voidance, and consequently no title to the Patron to present before Deprivation, and that the Di­spensation prevented the Deprivation, which was a Spiritual Act, wherewith the Patron had not to do, and by a Consequent only prevented the voidance.

It is resolv'd in Holland's Case, Digby's Case, Hollands Case. 4. Rep. Digby's Case. 4. Rep. and many o­thers, that the Patron may present assoon as the Incumbent is Instituted in a second Living without deprivation, and that the Law was anciently so, therefore that evasion is not material.

Another answer hath been likewise offered, and passeth in the New Books for current, that in the case of Pluralities the voidance is by the Canon Law, and therefore may be dispensed with by the same Law, but in the case of a Bishop made, the voidance is by the Common Law.

If Canon Law be made part of the Law of this Land, then is it as much the Law of the Land, and as well, and by the same Authority, as any other part of the Law of the Land. And if it be not made the Law of the Land, then hath it no more effect than a Law of Utopia, therefore the Canon Law in force here is Law of the Land.

Besides their meaning is to be learn'd, who say, an Incum­bents Benefice, made a Bishop, is void by the Common Law, and not by the Canon Law. The words of Thyrning in that case 11 H. 4. are, (who was then Chief Iustice.)

11 H. 4. f. 60. b. Da. Rep. f. 81. a. & f. 68. b. I suppose that when a man Benefic'd is made a Bishop, it is by the Law of holy Church that his Benefice becomes void, and the same Law which gives the voidance may cause that it shall not be void, and that concerns the power of the Apostle. The Common Law doth not prohibit Pluralities, nor make a voidance of his Benefice when the Incumbent is Bishop, but the ancient Ecclesi­astical Law of England.

Obj. 3 11 H. 4. f. 77. a. per Hill.It is a Contradiction that the Incumbent being the Bishops Subject, and the Bishop his Soveraign, should be united: the Servant, qua Servant, may as well be Master, the Tenant, qua Tenant Lord, the Deputy the Deputor, the Delegator the Dela­gated, which is impossible.

Answ. It is a Contradiction that a person Subject, being so should not be Subject, but no contradiction that a person Subject should cease to be so; the subjection of the Incumbent ceaseth when the Rectory is in the Bishop; the Deputy is not when the princi­pal Officer executes the office in person, and relation of Lord and Tenant destroy'd, when the Lord occupies the Land himself.

If an Act of Parliament should enable every Bishop to hold his former Benefices, no contradiction would follow, nor doth now by the Dispensation.

And note, all these Reasons deny the Popes power formerly, the Arch-bishops now, and the King's also; for they are not Reasons against the power of the party dispensing, but that the Subject matter is capable of no dispensation.

There is no inconsistence for a Bishop to be an Incumbent, for he is a Spiritual Corporation, and being Patron of a Living, might and may have it appropriate, that is, to be for him and his Successors perpetual Incumbents.

Da. Rep. f. 80. b. The Rectories of Eastmeane and Hambleden are appropriate ad Mensam of the Bishop of Winchester, and many others in England and Ireland so appropriated.

Selden. Hist. of Tithes. [...]. 6. par. 3. f. 8 [...]. b. c. 9. par. 2. f. 253. Every Bishop, many hundreds of years after Christ, was univer­sal Incumbent of his Diocess, received all the profits which were but Offerings of Devotion; out of which he paid the Salaries of such as officiated under him, as Deacons or Curates in places ap­pointed.

Quest. 2 Second Question, Whether the Pope formerly used to di­spense in such a case, and consequently the Arch-bishop now can by the Stat. of 25 H. 8. c. 21?

1. Bishop of St. Davies Case. The particular dispensation granted to the Bishop of St. Davies in 11 H. 4. is a full instance, nor was it in the Argument of that case insisted, that the Pope could not dispense with a Bishop to retain or receive a Benefice. But the sole Question was, Whether (in that particular case, because the Benefice to be retain'd belong'd to the presentation of a Church-man, viz. the Bishop of Salisbury) the Dispensation did not amount to a provision, and so was within the Statute of Provisions, 25 E. 3.

2. By the Statute of 28 H. 8. it appears the Bishop of Rome did grant Faculties and Dispensations to the King's Subjects, 28 H. 8. c. 16. as Pluralities, Unions, Tryalities, Appropriations, Commendams, Exemptions; where Commendams are enumerated: and by that Act all granted by the Pope are made void, but to be renew'd in the Chancery.

3. Procuring Commendams were so frequent in Ireland, 7 E. 4. c. 2. that a special Act of Parliament was there made 7 E. 4. against all such as should purchase Bulls for any Commendam, to put them out of the Kings protection.

4. A Bastard instituted and inducted before Deprivation, 11 H. 4. f. 78. a. & f. 60. a. 11 H. 4. f. 76. b. a Se­cular Priest before he became regular, whereof many were in England (and Thyrning saith he knew that Edmond Monk of Berry, who was with Edward the Third, held many Benefices though a Monk) and Pluralities were ordinarily dispensed with by the Pope.

5. 11 H. 4. f. 38. a. Hankford saith he hath seen that the same man was Abbot of Glastenbury, and Bishop of another Church simul & semel.

Horton, 11 H. 4. f. 76. a. The Pope may grant that one man may hold three Bishopricks at a time, which Hankford agreed, if with consent of the Patrons: For if without their consent, it was not dispen­sing to hold them, but granting away the property of the Pa­trons, which a Dispensation could not.

Henry Beaufort, Vncle to Henry the Sixth, Da. Rep. f. 80. 77. b. had a Dispensation to retain the Bishoprick of Winchester, being Cardinal, but it was ineffectual, because obtained after he was Cardinal.

Cardinal Woolsey obtained before he was Cardinal a Dispensa­tion to hold the Arch-bishoprick of York, and the Abbey of St. Albans, together with his Cardinalship.

Lindwood. Titulo de Praebendis cap. Audistis, Lindwood. f. 100. b. Potestas quae secundum antiqua jura dabatur Episcopis ad dispensandum super [Page 24] pluralitate Beneficiorum restricta est, saltem in dignitatibus & Bene­ficiis curatis, sed circa beneficia simplicia bene poterunt Episcopi dispensare. And in the same Gloss, In dignitatibus & curatis so­lus Papa dispensat.

Authority in the point that a Rector of a Church dispens'd with according to 25 H. 8. before he is consecrated Bi­shop, remains Rector, as before, after Consecra­tion.

[...]8 H. 6. f. 19. Br. Spoliati­on. pl. 4. 1. Where the Pope licenses one who is created a Bishop to retain his ancient Benefice, and the Patron presents another, the elder Incumbent sues a Spoliation in the Spiritual Court, it well lyes, for both claim by the same Patron, Quae supradicta omnes concesserunt, saith the Book.

Fitz. N. B. Tit. Spoliation f. 36. b. 2. The Writ of Spoliation lyes properly by one Incumbent a­gainst another Incumbent, where the right of the Patron comes not in debate.

As if a person be created Bishop, and hath a Dispensation to hold his Rectory, and after the Patron presents another Incum­bent, who is instituted and inducted, the Bishop shall have a­gainst that Incumbent a Spoliation, this proves the Bishop to con­tinue Incumbent after his Consecration, and to hold his Rectory by his former presentation.

Dy. 6. El. f. 228. b. pl. 48. 6 & 7 El. f. 233. A. p. 12. John Packhurst, Rector of Cleve in Gloucestershire, had a Di­spensation to hold it notwithstanding he were advanc'd to any Bishoprick in the Realm, for three years from the Feast of St. Mi­chael, 1560. to the same Feast 1563. he was after consecrated Bishop of Norwich, and within the three years resign'd: the Queen presented [...] one her Chaplain, supposing she had title by Cession of the Bishop; Sir H. Sydney the Patron brought a Quare Impedit, and the Church was found to be void by Resignation of the Bishop of Norwich, and recover'd and had Judgment.

1. This case proves the Bishop of Norwich Incumbent, as for­merly, notwithstanding his Consecration, else the Living had not voided by his Resignation.

2. The Dispensation was only for three years, yet he was as intire Incumbent, and might resign during those three years, as if he had not been Bishop.

3. It proves the Dispensation may be for a time only to hold his former Benefice, & ad modum concedentis, which clears the last Question, that in such a Commendam retinere the Dispensati­on is good, though it be but for as long as he is Bishop of that See, and then determines.

An Incumbent made Bishop, and retaining by Dispensation, may have (which none but a perfect Incumbent can have) a Writ of

• Spoliation,
• Juris Utrum,
• Vi Laica Removenda,
• Annuity for him, or
• Annuity brought against him.

In the Bishop of Ossory's case, they which argued against him conclude, out of all this difference results, viz. That a Faculty granted to one which is not Incumbent to take a void Benefice is void, and a Faculty to one which is Incumbent of a Benefice to re­tain the same is good. The other side for the Bishop concluded the Capere in Commendam good where the Patron was not prejudic'd, as in Lapse, and consequently the Retinere to be good, consented to by him who was to present upon voidance.

The Commendam Retinere may be for years, or any time,Colt and Glo­vers Case, Hobart. f. 156. the difference is manifest if their nature and reason be obser­ved.

The difference between Retinere and Capere is no less than between holding that which is already my own, and taking that which is anothers. I am already benefic'd by Presentation, &c. in ordinary form, I would take a Bishoprick which would void the Benefice, therefore I obtain a Dispensation to continue holding my Benefice for three years, I remain Parson of the same benefice of no less estate than I had before; and when the three years are past the benefice voids, as it would have done at the first, if there had been no Dispensation.

And again,Hob. f. 158. a Bishop by Dispensation may retain as many Be­nefices as he had lawfully before, but take none of new if he had his number before, &c.

William Bradbridge being Bishop of Exeter, Cok. lib. Intr. f. 475. Heales Case. Rolls 344. b. pl. 2. obtain'd Letters of Dispensation from the Arch-bishop, with the Queens Confir­mation to receive any two Benefices with or without cure, and retain them with his Bishoprick within his Diocess, quamdiu E­piscopatui praedict. praeesset after he was presented to the Rectory of Newton ferris, and dyed, and the Patron presented Simonai­cally, and after six Months the Bishop presented as by Lapse, and a Quare Impedit brought against him, where the avoidance of the Church per mortem of the Bishop of Exeter is admitted, though it be taken by protestation in that case that the Church non vacavit per mortem.

Note, the Bishop of Exeter was presented to the Arch-bishop, and instituted and inducted.

If after the death of the last Bishop, who held this Church by Dispensation, the King may present, as the case is, the next succeeding Bishop to hold it by Dispensation, he may so present the third, and so toties quoties there shall be a Bishop of Oxford, and for the same reason, viz. the small Incomes of the Bishop­rick.

So shall the Patron for ever loose his Presentation, omitting nothing to be done, nor committing any thing not to be done, but doing his duty in presenting a fit person, and who deserved to be made Bishop.

Hill. 19 & 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff, Anne Roper Vicountess Baltinglass Vidua, Defendant, in a Plea of Trespass and Ejectment.

THe Plaintiff declares, That the Defendant, vi & Armis, entred into 20 Messuages, 1000 Acres of Land, 200 Acres of Meadow, and 500 Acres of Pasture, cum pertinentiis in Thorn­bury, Shalston, Evershaw, Oldwick, Westbury, and Looffield, and into the Rectory of Thornbury, which Thomas Gower Kt. and Baronet, and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Mi­chael the Arch-angel last past, for the term of Five years next en­suing, into which he the said Baruck the same day entred, and was ousted and ejected by the Defendant ad damnum 40 l.

To this the Defendant pleads Not Guilty.

And the Jury have found specially, That the Defendant is not guilty in all those Tenements, besides 5 Messuages, 400 Acres of Land, 50 Acres of Meadow, 100 Acres of Pasture, cum pertinen­tiis in Thornbury, Shalston, Evershaw, Oldwick, and Westbury, and in the Rectory of Thornbury, and besides in one Messuage, 100 Acres of Land, 50 Acres of Meadow, and 100 Acres of Pasture cum pertinentiis in Looffield.

And as to the Trespass and Ejectment aforesaid in the said five Messuages, &c. and in the Rectory of Thornbury, the Iury say upon their Oath, that before the said Trespass and Ejectment sup­pos'd 22 Junii, 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned, and of the said Premisses in Looffield, and so seis'd.

A certain Indenture Tripartite was made 22 Junii, 12 Jac. be­tween him the said Sir Arthur of the first part, Edward Lord Wootton, Augustine Nicholls Kt. Francis Harvey Esq; and Row­ly Ward Esq; of the second part, and Sir Peter Temple, and Anne Throgmorton, Daughter of the said Sir Arthur, of the third part.

To this effect, That the said Sir Arthur Throgmorton did cove­nant and promise with the said Lord Wootton and Sir Augustine Ni­cholls, in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne, and other the considerations men­tioned in the said Indenture by Fine or Fines, before the Feast of St. Michael the Arch-angel next ensuing, or other good Conveyance to be levied by him and the said Dame Anne his wife, to the said Lord Wootton, &c. The scite and precinct of the Priory of Looffield, the Rectory of Thornbury, and divers Mannors, Lands, and Tenements in the said Indenture mentioned, several yearly Rents therein men­tioned; and all other his Lands in the Counties of Northamp­ton, Buckingham, and Oxford, at any time belonging to the said Pri­ory, to convey and assure

To the use of himself, for life, without Impeachment of Waste.

Then to the use of Dame Anne his Wife.

Then to the use of the said Sir Peter Temple, and the said Anne his Wife, during their natural lives, and the longer Liver of them: and after both their Deceases,

To the use of the first Son of the Body of Anne by the said Sir Peter begotten; and of the Heirs Males of the Body of the said first Son, so to the sixth Son.

Then to the use of all other Sons in succession, in like manner, of the Body of Anne, begotten by the said Sir Peter.

And for default of such Heirs, To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten; and the Heirs of the Bodies of the said Issues Female.

For default thereof, To the first Son of the said Anne by any o­ther Husband, and his Heirs Males, and so to the tenth.

In like manner to the Issues Female of the Body of Anne, with di­vers Remainders over.

A Proviso, That it be lawful for Sir Arthur, at all times during his life, to lett, set, and demise, all or any the said Premisses afore­said, which at any time heretofore have been usually letten or demi­sed to any person or persons, for and during the term of One and twenty years or under, in possession, and not in Reversion; or for or during any other number of years determinable upon one, two, or three Lives in Possession, and not in Reversion, reserving the Rents therefore now yielded or paid, or more to be yearly due and payable during such Lease and Leases, unto such person and persons unto whom the said Premises, so to be demised, shall come, and be by virtue of these Presents, if no such demise had been made, so long as the same Lessees, their Executors and Assigns, shall duly pay the Rents, and perform their Conditions according to the true meaning [Page 30] of their Indentures of Lease, and commit no waste of and in the things to them demised.

The like Proviso verbatim for Sir Peter Temple, and Anne his Wife, to make like Leases during their Lives, and the Life of the longer liver of them, after the death of Sir Arthur, and Dame Anne his Wife.

That a Fine was accordingly levied, &c. to the uses afore­said.

They find that all the Messuages, Lands, Tenements, and Recto­ry in the Declaration mentioned, are compris'd in the said Inden­ture Tripartite

They find the death of Sir Arthur Throgmorton and Anne his Wife, 2. Septemb. 1 Car. 1. and that Sir Peter Temple entred, and was seis'd for term of his life.

They find he had Issue of the Body of Anne his Wife, Anne the now Defendant, Daughter and Heir of the Bodies of the said Sir Peter and Anne his Wife; and that Anne, Wife of Sir Peter, died 2. Sept. 3 Car. 1.

1. They find a Demise by Sir Peter Temple to Sir Thomas Gower and Hillyard of the Rectory of Thornbury, 9. Maii, 23 Car. 1. for 30 l. Rent.

2. They find a Demise by him to them of a Messuage in Thorn­bury, 9. March, 23 Car. 1. of Woolheads Tenement, for 16 l. 13 s. 4 d. Rent.

3. They find a Demise to them, 9. March, 23 Car. 1. of Land in Thornbury, held by Roger Rogers, Rent 13 l. 6 s. 8 d.

4. They find a Demise, 9. March, 23 Car. 1. of Nelson's Tene­ment in Thornbury, Rent 16 l. 13 s. 4 d. at Michaelmass and Lady-day.

5. They find a Demise, 13. March, 23 Car. 1. of Lands in Shalston, Eversham, and Oldwick, held formerly by William Hughes, Rent 15 s. 4 d.

These respective Leases were made for the term of 90 Years, determinable upon the Lives of the Lady Baltinglass the Defen­dant, Sir Richard Temple's, and the Life of a younger Son of Sir Peter Temple, as long as the Lessees should duly pay the Rents reserved, and commit no waste, according to the Limi­tation of the Proviso in 12 Jac. which is recited in the respective Leases.

6. Then the Iury find, quod predicti separales reditus super prae­dictis separalibus Indenturis, Dimissionis reservat. fuerint reservat. reditus de & super premissis praedictis, 22. dii Junii, Anno Jacobi Regis 12. supradict. Et quod praedict. separales reditus, &c. in for­ma [Page 31] praedict. reservat. ad Festum Sancti Michaelis Arch-angeli, quod fuit 1653. debit. non solut. sive oblat. suerint super idem Festum, sed quod iidem reditus infra unum mensem prox. post Festum prae­dictum praefat. Annae Roper Defend. solut. fuerunt.

7. They find a Demise to them of the Scite and Priory of Loof­field, 9. March, 23 Car. 1. at the Rent of 100 l. payable equally on Lady-day and Michaelmass-day (demised by Sir Arthur Throg­morton, and Anne his Wife, 20th. of May, 12 Eliz. 1570. to Wil­liam Hewer for 21 years, Rent 100 l. Lady-day and Michaelmass with some Exceptions) for the like term of 90 years, and upon like Limitations as in the former Leases.

The Iury find quod Tenementa praedicta cum pertinentiis in Looffield supranominat. tempore dict. Eliz. nuper Reginae Angl. fu­erint dimissa ad redditum 100 l. pro termino 21. Annorum, sed di­missio & terminus 21 Annorum expirati fuerunt; Et dicunt quod eisdem Juratoribus non constabat, quod dicta Tenementa in Loof­field praedict. 22 die Junii, 12 Jac. aut per spatium 20 Annorum tunc antea fuerint dimissa; Et dicunt ulterius quod 50 l. pro dimi­dio unius Anni de praedictis Tenementis in Looffield, ad Festum San­cti Michaelis Arch-angeli quod fuit Anno Dom. 1653. debit. oblatae fuerint; Et quod praedicta Anna Roper ante Festum Annunciatio­nis prox. sequent. intravit.

They find, that Gower and Hillyard claiming the said 5 Mes­suages, 400 Acres of Land, 50 Acres of Meadow, and 100 Acres of Pasture in Thornbury, Shalston, Evershaw, Oldwick, and West­bury; As also the said Messuage and other the Premisses in Looffield, and the Rectory of Thornbury, before the supposed Trespass and Ejectment, entred upon the Possession of the Lady Baltinglass, and so possessed, made a Lease to the Plaintiff, by virtue of which he entred, and was possessed, until outed by the Defendant, as by the Declaration. But whither the Defendant be culpable, they refer to the Court.

Vpon this Verdict the Questions are two:

1. The first, Whither the Defendants entry into the six Te­nements leased to Gower and Hillyard, for not payment of the Rent reserv'd upon the day of payment, were lawful or not?

And as to that the Court is of opinion, that the Defendants En­try was lawful; for that the Leases were not deriv'd out of the Estate of Sir Peter Temple, who was but Tenant for life, and had no Reversion in him, but out of the Estate of Sir Arthur [Page 32] Throgmorton, by Limitation of the Proviso in the Deed, 12 Jac. so as the Leases were not Leases upon Condition to pay the Rent at the day, to which any Demand or Re-entry was requi­site for Non-payment; but were Leases by Limitation, and de­termined absolutely according to the Limitation.Littl. f. 235. a. For this, Lit­tleton is express, that the words quamdiu, dum, and dummodo, are words of Limitation. As if a Lease be made to a Woman, dum sola fuerit, or dum casta vixerit, or dummodo solverit talem reditum, or quamdiu solverit talem reditum; so are many other words there mentioned: And if there be not a performance ac­cording to the Limitation, it determines the Lease.

But it is otherwise where a Rent is reserv'd upon Condition; for there is a Contract between the Lessor and Lessee, and the Law evens the Agreement between them, as is most a­greeable to Reason, and the supposition of their Intenti­on.

But in the present case Sir Peter Temple had no interest in him, out of which such Leases could be deriv'd, but had a power only to make them by virtue of the Proviso in Sir Arthur Throg­mortons Deed, and the Lessees must be subject to such Limitations as are thereby made.

It was agreed by the Council of the Plaintiff, That it was not a Condition for payment of the Rent, nor could it be; but they would call it a Caution. A Condition to determine a Lease or a Limitation, is a Caution, and a material one; but such a Caution as hath no more effect than if it were not at all, is a thing insignificant in Law; and therefore must not supplant that, which in proper terms is a Limitation, and hath an effect.

2. The next Question is upon the Lease of Looffield, which arises upon the words of the Proviso, That it should be law­ful for Sir Peter Temple to demise all or any the Premisses, which at any time heretofore have been usually letten or demised for the term of 21 years or under, reserving the Rent thereupon now yield­ed or paid.

And the Iury finding the Lands in Looffield to have been de­mised 12th. of the Queen for 21 years for 100 l. Rent, and that that term was expired, and not finding them demis'd by the space of twenty years before at the time of the Indenture, 12 Jac. Whither the Lease by Sir Peter Temple of them, be warranted by the Proviso (there being reserv'd the Rent, re­serv'd by the Lease in 12. Eliz. viz. 100. l.

The Court is of opinion, that the Lease of Looffield is not warranted by that Proviso, for these Reasons.

1. It is clear, Sir Arthur Throgmorton intended to exclude some Lands from being demisable by that Proviso, namely, Such as at any time before were not usually let and set to Farm: For where a mans power is limited to lease Lands so spe­cially qualified; that is, let and set usually at any time before, when he could not lease at all, without such special power given him, he is absolutely barr'd from leasing Land which is not so qua­lified.

2. It must be presumed Sir Arthur Throgmorton knew he had such Lands, as according to his Intention were not at any time before usually set and let, and had reason not to suffer them to be demiseable within that Proviso, to the prejudice of those in Reversion. As for example, his Mansion-house, Gardens, Cur­tilages, and Lands occupied in Demesne.

For it had been vain to provide against the leasing of Land in such manner condition'd, whereof he had none so condition'd. But if notwithstanding, it shall be taken that any his Lands, which at any time past, how long soever since, one, two, or three hundred years, were demised, as perhaps the scite of his House and all his Demesne were, though he knew not of it, shall therefore now be demiseable within this Proviso.

Then is the Proviso inconsistent with it self, and repugnant to his meaning; for he intended thereby to hinder the demising of some of his Lands: But by that construction of the Proviso, every part of his Land might be demised; for doubtless, at some time or other, every part of it was demised, and probably by Records or other ancient Evidence, might appear so to be.

3. If this were the meaning of the Proviso, the word (usu­ally) in it was to no purpose; for it had been much clearer to say, That any Lands, at any time heretofore demis'd, should be demiseable for 21 years by Sir Peter Temple, which doubtless was not Sir Arthur's meaning, and consequently this Lease of Looffield not according to his meaning.

1. Now for the literal sense of the Proviso: Rolls, Title Power. f. 261. n. 11. 2 Jac. in Ban [...]o. If power be to make Leases for 3 lives, or 21 years, of Lands usually letten; Land which hath been twice letten is within the Proviso, but not Land which hath been but once letten.

Therefore this Land of Looffield letten but once, 12 Eliz. is not within the Proviso.

But I insist not much upon this case, for the words usually demis'd may be taken in two senses: The one for the often farm­ing or repeated Acts of leasing Lands, to which sense this Case doth reasonably extend.

But the other sense of Land usually demis'd, is for the com­mon continuance of Land in lease, for that is usually demis'd; and so Land leas'd for 500 years long since, is Land usually demis'd, that is, in lease, though it have not been more than once demis'd, which is the more receiv'd sense of the words, Land usually demis'd.

2. The meaning of the words, at any time, is various, and of contrary meaning. If it be asked by way of Question, Were you at any time at York? It is the same as, Were you ever, or sometime at York? So in the Question, Was this Land at any time in Lease? is the same, as, Was it ever, or some time in Lease?

But when the words, at any time, are not part of a Question, but of an Answer, they have a different and contrary meaning. As if it be asked, Where may I see or speak with John Stiles? and it be answered, You may speak with him, or see him at any time at his House. There the words, at any time, signifie at all times, and not as in the question, at some time.

So when the words are used by way of a plain enunciation, and not as part of a Question or Answer; As, You shall be welcome to my House at any time, signifie You shall be welcome at all times.

So in the present Case, if it-be made a Question, Was such Land heretofore at any time usually letten and set to Farm? im­ports in the Question, Was this Land ever, or at some time here­tofore (how long ago soever) usually let to Farm.

But by way of enunciation if it be said, This Land was usually let to Farm at any time heretofore; it means, This Land was com­monly, at all times heretofore, let to Farm.

So this Land was usually in Pasture at any time heretofore, signifies, this Land was always, or commonly in Pasture hereto­fore.

So, you may lease any Land heretofore letten to Farm at a­ny time, usually, is the same with heretofore letten to Farm commonly at all times. And this Construction of the Proviso agrees both with the words and intention of Sir Arthur.

But what was not farmed at the time of this Proviso made, nor 20 years before, could not be said to be at any time before commonly Farmed; for those 20 years was a time before, in which it was not farmed.

But to come closer, The Proviso is that Leases may be made for 21 years of any the Lands in the Deed, reserving the Rents there­upon reserved at the time of the Deed made, viz. 12 Jac.

Which necessarily implies, that the Land demiseable by that Proviso, must be Land which then was under Rent; for where no Rent then was, the Rent then thereupon reserv'd could not be reserv'd. But Looffield had then no Rent upon it, for it was not let of 20 years before, nor then, and therefore was not de­miseable by that Proviso.

The words (or more) will not at all help the Plaintiff, for the words (more or less) are words of relation; the one of addi­tion to what was before; the other of diminution; for (more or less) must relate to something positive in the kind before, and can never be a relation to nothing.

So (more wages) necessarily implies some before, (more meat) (more drink) (more company) and, in all expressions (more) denotes a relation to somewhat before of the kind; and in the present Case, reserving (more Rent) must imply some before re­served. And therefore where none was at the time of the Deed made 12 Jac. there cannot, in any congruity of speech, more be reserved, or intended to be reserved.

Quaere, If the Record be mended in the point of finding the death of Sir Peter Temple, and when he died.

In this the Chief Justice delivered the Resolution of the whole Court.

Hill. 21 & 22 Car. II. Rot. 2259. C. B. Ralph Dixon Plaintiff,Harts. ss. versus Dean Harrison Defendant; In a Replevin, Quare cepit Averia ipsius Radulphi, & ea detinuit contra vadios & plegios, &c.

Distress, 21 Maii, 21 Car. 2.THe Plaintiff declares, That the Defendant, 21 die Maii, 21 Regis nunc, at Sandridge, in a place called Fregmor­field, took three Cows of the Plaintiffs, and detain'd them a­gainst Pledges quousque, to his damage 40 l.

The Defendant, as Bailiff of Elizabeth Rooper, Widow, Sa­muel Hildersham Gent. and Mary his Wife, Michael Biddulph Esq; and Frances his Wife, Humphrey Holden Esq; and Theo­dosia his Wife, avows and justifies the Caption; for that the place in quo, &c. contains a Rood of Land cum pertinentiis in Sandridge aforesaid.

That long before the Caption, Ralph Rowlett Knight, was seis'd of the Mannor of Sandridge in the said County, whereof the said place is and was parcel time out of mind.

Grant of the Rent, June 26 8 Eliz.That the said Sir Ralph, 26. June, 8 Eliz. at Sandridge afore­said, by his Deed in writing under his Seal, produc'd in Court, thereby granted and confirmed to Henry Goodyeare then Esquire, and after Knight, and to the Heirs of his Body, a yearly Rent of 30 l. out of all his said Mannor, and other his Lands in Sandridge aforesaid, payable at the Feasts of St. Michael the Arch-angel, and the Annunciation.

The first payment at such of the said Feasts which should happen after the expiration, surrender, or forfeiture to be made after Sir Ralph Rowlett's death, of certain terms of years, of parcel of the Premisses made to one William Sherwood and Ralph Dean seve­rally.

With Clause of Entry and Distress to Henry, and the Heirs of his Body, if the Rent were unpaid.

And that Sir Ralph gave the said Henry seisin of the said Rent, by payment of a peny, as appears by the Deed.

Rowletts death, 1 Sept. 33 Eliz.Sir Ralph Rowlett, after the First day of September, 33 Eliz: at Sandridge aforesaid, died.

That after the Second day of September, Terms expi­red Sept. 2. 33 Eliz. 33 Eliz. the said terms of years expired, whereby the said Henry became seis'd of the said Rent in tail.

That Henry had Issue the said Elizabeth and Mary, Hen. Good-year died 1. Octob. 33 Eliz. and one Anne, his Daughters and Coheirs, and died 1. Octob. 33 Eliz so seis'd.

That the said Coheirs, being seis'd of the said Rent,Mary married Samuel 1. May 1634. and Anne the same time married John Kingston. to them and the Heirs of their Bodies, the First of May, 1634. Mary married the said Samuel Hildersham, and Anne married one John Kingston, whereby the said Elizabeth and Samuel and Mary, in right of the said Mary, and John and Anne in right of Anne, were seis'd of the Rent.

December 25. 1635. Anne had Issue by John her Husband,Anne had Is­sue Frances and Theodo­fia, she and her Husband John died 1 Jan. 1635. the said Frances and Theodosia; and John her Husband and Anne died 1. Januarii, 1635.

That thereby Elizabeth, Samuel, and Mary, in right of Mary, Frances, and Theodosia became seis'd of the Rent.

April the 10th. 1647. Frances married the said Biddulph, and Theodosia the said Humphrey Holden, whereby Elizabeth, Samuel and Mary, in right of Mary; Biddulph and Frances, in right of Frances; and Holden and Theodosia in right of Theodosia, be­came seis'd of the Rent.

And for 120 l. for four years arrear after the death of John and Anne, ending at the Feast of St. Michael, 1655. being un­paid at the time and place, &c. the Defendant, as their Bailiff, entred, and distrained the said Cows.

The Plaintiff demands Oyer of the Deed of Grant, and hath it in these words, &c.

And then the Plaintiff replies, that before the time of the Caption, that is, A die Paschae in quindecim dies, a Fine was le­vied in the Court of Common Pleas, in the One and twentieth of the King, before the Iustices there, &c. between Richard Harri­son Esquire, and the Avowants of the said Rent, with Warranty to the said Richard and his Heirs.

And that this Fine was to the use of the Conizors and their Heirs, and demands Iudgment.

The Defendant thereupon demurrs.

WHERE the Law is known, and clear, though it be un­equitable and inconvenient, the Iudges must determine as the Law is, without regarding the unequitableness or inconveni­ency.

Those defects, if they happen in the Law, can only be reme­died by Parliament; therefore we find many Statutes repealed, and Laws abrogated by Parliament, as inconvenient, which be­fore such repeal or abrogation, were in the Courts of Law to be strictly observed.

But where the Law is doubtful, and not clear, the Iudges ought to interpret the Law to be as is most consonant to equity, and least inconvenient.

And for this reason, Littleton in many of his Cases, resolves the Law not to be that way which is inconvenient, which Sir Edward-Cook, in his Comment upon him, often observes; and cites the places, Sect. 87.

In the present Case there are several Coparceners, whereof some have Husbands seis'd of a Rent Charge in tail: the Rent is behind, and they all levy a Fine of the Rent to the use of them and their Heirs.

If after the Fine levied, they are barr'd from distraining for the Rent arrear, before the Fine, is the Question? It being a­greed they can have no other remedy, because the Rent is in the reality, and still continuing.

If they cannot distrain, the Consequents are,

1. That there is a manifest duty to them of a Rent, for which the Law gives no remedy, which makes in such case the having of right to a thing, and having none, not to differ: for where there is no right, no relief by Law can be expected; and here, where there is right, the relief is as little, which is as great an absurdity as is possible.

2. It was neither the Intention of the Conizors, to remit this Arrear of Rent to the Tenant, nor the Tenants to expect it: nor could the Conizors remit it but by their words or intentions, or both; nor did they do it by either.

3. It is both equitable in it self, and of publick convenience, that the Law should assist men to recover their due, when de­tain'd from them.

4. Men in time of Contagion, of Dearth, of War, may be occasioned to settle their Estates when they cannot reasona­bly expect payment of Rents from their Tenants for Lives, or others, and consequently not seasonably distrain them; and it would be a general inconvenience in such case to lose all their Rents in Arrear. So as both in Equity and Conveniency the Law should be with the Avowants.

In the next place we must examine, Whether the Avow­ants, that is, the Conizors of the Fine, be clearly barr'd by Law to distrain for the Rent arreare before the Fine? For it must be agreed, they have no other remedy by the Com­mon Law, or otherwise: to which purpose I shall open some Premises, that my Conclusion may be better appre­hended.

1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and the Distrained, that the Te­nant may know to whom the Rent or other Duty ought to be paid; and likewise know a lawful distress from a tortious ta­king of his Cattel.

2. This privity is created by Attornment, either in Fact or in Law, by the Tenant to the Lord, to the Reversioner, to the Grantee of a Remainder, or of a Rent by Deed or by Fine: Litt. Sect. 579. For this Sir Edward Cooe upon the 579th. Section of Littleton, and in many other of his Sections.

The Conizee of a Fine before Attornment cannot distrain, be­cause an Avowry is in liew of an Action, and thereto privity is requisite; for the same cause he cannot have an Action of Waste, nor many other Actions there mentioned, and the Au­thorities cited; and so is Littleton himself expresly, Litt. Sect. 580. Section 580.

Where a man by grant to himself, or by descent from his Ancestor, hath a Rent-charge, and might once lawfully distrain, and Avow for such Rent if Arrear, by due Attorn­ment made to him or his Ancestor, he may still do so whenever the Rent is behind; unless by Law that power be some way lost.

1. That power may be lost by extinguishment of the Rent, by a perpetual union of the tenancy to the rent, or rent to the tenancy, or in other manner, the Grantee having no Heir.

2. It may be lost for a time by Suspension, as by such union for a time, and after restored again.

3. It may be lost by a Grant of the Rent upon Condition,7 H. 6.3. Br. Extinguish­ment, p. 17. and upon performance or breach of the Condition restored a­gain; but the power of distraining is not in this Case lost by a­ny of these ways.

4. It may be principally lost by a sufficient granting over, and transferring the Rent to another; which way comes nearest to the Case in question.

And therefore I shall agree the Case so much insisted on, which is said to be agreed per Curiam, Andrew Og­nell's Case, 4. Rep. f. 49. in Andrew Ognell's Case, in the fourth Rep. That if a man be seized of a Rent-service, or Rent-charge in Fee, and grant it over by his Deed to another and his Heirs, and the Tenant Attorn, such Grantor is without remedy for the Rent arrear before his Grant; for distrain he cannot, and other remedy he hath not, because all privity between him and the Tenant is destroyed by the Attornment to the Grantee, and he hath no more right than any Stranger to come upon the Land, after such transferring over of the Rent.

I shall likewise agree another Case, That if such Grantee should regrant the same Rent back to the Grantor, either in fee, in tail, or for life, and the Tenant Attorn, as he must to this regrant, yet the first Grantor shall never be enabled to di­strain for Arrears due to him before he granted over the Rent; for now the privity between him and the Tenant begins but from the Attornment to the regrant, the former being abso­lutely destroyed, and the Tenant no more distrainable for the ancient Arrears than he was upon the creation of the Rent, for Arrears incurred before, till first attorn'd.

If the Case in question prove to be the same in effect with ei­ther of these Cases, then the reason of Law for these Cases must sway and determine the Case in question.

And I conceive that there is no likeness or parity between the Case in question, and either of those Cases, either for the fact of the Cases, or the reason of Law.

I shall therefore begin with comparing this Case with the first of those Cases.

1. In the first of those Cases, he that is seis'd of the Rent-charge, doth intend to transferr his Estate in the Rent to the Grantee, and it is accordingly actually transferr'd by the Te­nants Attornment to the Grant.

2. The Grantee by his Grant and Attornment to it, becomes a­ctually seis'd of the Rent, and may enjoy the benefit of it by perception of the Rent.

3. His Wife becomes dowable of it.

4. It is subject to Statutes, Recognizances, and Debts enter'd into by the Grantee, or due from him to the King.

5. It is possible to descend to his Heir.

6. It may be Arrear, and he hath a possibility to distrain and avow for it.

[Page 41] 1. But in the Case in question, the Conizors of the Fine did never intend to transfer their Estate in the Rent to the Conizee, nor that any Attornment be made to him: What a man intends to pass to another, he intends to be without it him­self, at least for some time, which is not in this Case.

2. The Conizee never becomes actually seiz'd of the Rent, and not only doth not, but never can enjoy the perception of it; for there is no moment of time wherein the Conizors them­selves are not actually in seisin of it, and consequently may distrain if it be in Arrear, and the Conizee can never have actually seisin, or possibility to have Attornment or distrain, his seisin being but a meer fiction, and an invented form of Con­veyance only.

3. The Conizee's Wife is never dowable of it.

4. It is not subject to any Statutes, Recognizances, or Debts of the Conizee.

5. It is never possible to descend to his Heir, for it instantly vests in the Conizors.

6. It can never be Arrear to the Conizee, nor hath he ever a possibility to distrain for it.

To this purpose what is agreed in the Lord Cromwell's Case,L. Crom­well's Case, 2. Rep. f. 77. 2. Rep. is applicable; Then it is to be consider'd what seisin Perkins had, who was the Conizee of a Fine in that Case; and he had but a Seisin for an instant, and only to this pur­pose, to make a Render; for his Wife shall not be endow­ed, nor the Land subject to his Statutes or Recognizances, f. 77.

Therefore that first Case cited out of the Report of Andrew Ognell's Case, which I admit to be good Law, hath no resemblance with the present Case, in any circumstance or consequent; but had the Fine been to a third persons use, the consequents had been the same as in the Case cited out of Og­nell's Case, not as to the Conizee, but as to that third person to whom the rent was intended.

To conclude then this first part;

1. That whereof the Conizors were alwaies actually and se­parately seiz'd, the same was never by them transferr'd to the seisin of another: But of this Rent the Conizors were alwaies in actual seisin; for there was no moment of time wherein they were not seis'd; therefore this Rent was never transferr'd to the sei­sin of another, nor could any other, for any moment of time, have a separated seisin thereof; for what was mine at all times, could be anothers at no time.

[Page 42]2. It is an impossibility in Law, that two men severally shall have several Rights and Fee-simples in possession in one and the same Land,Dyer 28 H. 8. f. 12. a. p. 51. simul & semel per Fitz-herbert, in the Argument of Bokenhams Case; and the same impossibility is so to have of a Rent. Nor hath this relation to the learning of Instants in Digbie's Case, Coke 1. Rep. and Fitz-williams in the sixth Report.

That an old Use may be revoked, and a new rais'd in the same time, and an old possession ended, and a new begun; this is usual in all transmutation of Estates and things also: For in nature, a new form introduc'd, doth in the same moment destroy the old, according to that, Ge­neratio unius est corruptio alterius; but a separate possession can never be in two at the same time not out of the one, and yet in the other, more than the same Body can be in two se­veral places at the same time.

3. If a Feoffee to use of me and my Heirs, make a Feoff­ment to another without consideration to the use of me and my Heirs, notwithstanding there is a new Feoffment, the words of a use to me and my Heirs, Dyer 28 H. 8. f. 12. 6. per Baldwin Chief Justice. yet the use being the former use, viz. to me and my Heirs, this latter is no new use given to me, for I cannot have that use given which I had before; for to give what I had before is no gift, as is well press'd by that Book.

And by the same necessity, where I have the possession before, a new possession cannot be really given me by the Sta­tute of 27 H. 8. whose operation is properly to give to him which had not the possession, but only an use; the possession which he wanted before to the use which he had before, in such manner as he hath the use.

But here the Statute cannot give the possession to the Co­nizors which they never wanted, nor the Conizee never had, ad aliquem Juris effectum, though perhaps fictitiously, and in order only to a form of Conveyance, which was not the end or intention of the Statute of Vses; but an use invented after that might be made of the Statute, in order to a ge­neral form of Conveyance, by which the parties might ex­ecute their Intentions, wherein the Conizee is but an In­strument or Property to execute their purpose, as in Crom­wells Case is said;L. Cromwells c. 2. Rep. but the Statute brings the new uses rais'd out of a feign'd possession, and for no time, in the Conizee to the real possession, and for all times in the Conizors, which operates according to their intent to change their Estate, but not their possession.

Besides, it hath been admitted at the Bar, that if the Fine had been levied without consideration, and no uses express'd, the Conizors might then have distrained for the Arrear, because the uses were the same as before, which, if granted, it resolves the Question, for the Attornment and power to distrain follows the possession, and not the use: And if after the supposed posses­sion of the Conisee, and his being seis'd to the old uses, when the Statute gives the possession back to the old uses, the Conizors might distrain for the Arrears before the Fine, as well as for those after, what hinders their distraining for them still? For the possession which the Statute gives to the old uses, is as new a possession as that it gives to the new uses, and the privity is the same in both Cases in regard of the Tenant.

And it is common experience, that a Fine levied without consideration or use expressed,Sir Moyle Finch's Case, 6th. Rep. f. 68. b. is to the use of the Conizor and his Heirs, who may have an action of waste after the Fine, for waste committed before, as well as he could before the Fine. The instant possession of the Conizee notwithstanding which, differs not from this Case.

The next enquiry is, What affinity this Case hath with the second Case propos'd, viz. That if one seiz'd of a Rent in Fee, grants it over to a Stranger and his Heirs, and the Tenant attorns; if such Grantee regrants the Rent back to the Gran­tor and his Heirs, there must be a new Attorment of the Te­nant to the Regrant; for the privity by the first Attornment was totally destroyed, and all Arrears of Rent lost when the Te­nant attorn'd to the Grantee, which Case I take to be clear Law, for by the Regrant a total new Estate is gain'd in the Rent, and thereby he who hath the Rent as if he never had any former Estate in it.

And in the present Case, the Estates after the Fine are whol­ly new, and other Estates in the Conizors (to which the Te­nant never attorn'd) than the Conizors had before the Fine in these Respects:

1. Before the Fine, the Husbands had but Estates in right of their Wives, and now they are Jointenants with their Wives.

2. The Wives, before the Fine had Estates of Inheritance absolute, and now they are Iointenants with their Husbands, and among themselves where Survivorship obtains.

3. The Women were Coparceners before, and the Husbands in right of their Wives, and they are now all Jointenants.

[Page 44]4. Two of the Coparceners had the Inheritance of entire third parts, and the two other of one intire third part; and now the four Women and three Husbands are equally Iointenants, which are Estates much differing from the Estates they had be­fore the Fine.

I must agree, That where persons seiz'd of a Rent-charge, by granting it over with Attornment of the Tenant, have totally de­parted from their Estate, and after retake, either such an Estate as they had before, or a differing Estate in the Rent, they must have a new Attornment, and the former privity is wholly destroyed, and consequently no Arrears can be distrain'd for, by reason of the first privity which is not.

But in this Case the Conizors never were, for any moment of time, out of possession of their first Estate, nor destroyed the first privity by any new Attornment, which either was, or possi­bly could be; but only some have enlarg'd their Estate, some diminish't it, others alter'd it, without destroying the old privi­ty, which may stand well with the Rules of Law; and conse­quently they may distrain for Rent arrears, and avow lawful­ly by reason of the first privity still continuing.

And I must observe in this Cases, that the Avowants, after the Fine, are the same persons avowing as before. 2. That after the Fine, there is but one common Avowry as before. 3. That there is no new person after the Fine, between whom and the Tenant there was not a privity before the Fine.

That a mans Estate in a Rent-charge, may be enlarg'd, diminish'd, or otherwise alter'd, and no new Attornment, or privity requisite to such alteration of Estate.

Litt. Sect. 549. A man seiz'd of a Rent-service or Rent-charge in Fee, grants the Rent to another for life, and the Tenant attorns after the Grantor confirms the Estate of the Grantee in Fee-tail, or Fee-simple, this Confirmation is good, to enlarge his Estate according to the words of the Confirmation.

Here no new Attornment to this new Estate, which now is Fee-tail or Fee-simple, in the Rent which was before, but an E­state for life is requisite, else the Confirmation were not good; but by Littleton it is good to enlarge the Estate.

2. Sir Edward Cook in his Comment upon this Case, saith, It is to be observ'd, that to the grant of the Estate for life, Littleton doth put an Attornment, because it is requisite; but to the Confir­mation to enlarge the Grantees Estate, there is none necessary, and therefore he puts none.

No man can doubt in this Case, that if Rent had been in Ar­rear to the Grantee for life, when his Estate was enlarg'd, need­ing no new Attornment or privity, he did not thereby lose the Rent-arrear.

If two Jointenants in Fee let the Land for life,Litt. Sect. 574 reserving a Rent to them and their Heirs, if one release to the other and his Heirs, this Release is good; and he to whom it was made shall have the Rent of Tenant for life only, and a Writ of Waste without Attornment to such Release, for the privity which once was between the Tenant for life and them in the Reversion.

So is it if one Jointenant confirms the Land to the other and his Heirs. Litt. Sect. 523.

The Law must necessarily be the same, if a man seis'd of a Rent-service or Rent-charge in Fee, grant it to two and their Heirs, or to two and the Heirs of one of them, and the Tenant attorn; if after, one Jointenant release to the other, or he which hath the Inheritance to him which hath but an Estate for life, and to his Heirs; the person to whom such Release is made, shall thereby have a Fee-simple, whereas before he had but for life in the Rent, and an Estate absolute, which before was joynt, without any new Attornment, for the reason of the former Case, because there was once a privity between the Tenant and them, which was never destroyed.

So is it if there be Lessee for life, the Remainder for life, he,Litt. Sect. 573 in the Reversion releaseth to him in the Remainder, and to his Heirs, all his right; he in the Remainder hath thereby a Fee, and shall have a Writ of Waste, and likewise the Rent of Tenant for life, if any were, without any Attornment of the Tenant for life, for the former privity between them.

Trin. 21. Car. II. C. B. Rot. 1714. The King Plaintiff, in a Quare Impedit, per Galfridum Palmer Atturnatum suum Generalem. Robert Bishop of Worcester, Thomas Jervis Esquire, and John Hunckley Clerk, Defendants.

THE King counts, That Queen Elizabeth was seis'd of the Advowson of the Church of Norfield, with the Chappel of Coston in gross, in Fee in Jure Coronae, and presented one James White her Clerk, who was admitted, instituted and indu­cted.

That from the said Queen, the Advowson of the said Church, with the said Chappel, descended to King James, and from him to King Charles the First, and from him to his Majesty that now is, who being seis'd thereof, the said Church, with the Chappel, became void by the death of the said James White, and therefore it belongs of right to him to present, and the Defendants di­sturbe him, to his damage of 200 l. which the said Attorney is ready to verifie for the King.

The Defendants plead severally, and first the Bishop, that he claims nothing in the said Church, and the Advowson but as Ordinary.

The Defendant Jervis saith, That long before the said Pre­sentation suppos'd to be made by the late Queen, one Richard Jervis Esquire, was seis'd of the Mannor of Norfield, with the Appurtenances in Com. praedicto, to which the Advowson, Ec­clesiae praedictae tunc pertinuit, & adhuc pertinet in his Demesne as of Fee, and so seis'd, the said Church became void by the death of one Henry Squire then last Incumbent of the said Church, and so continued for two years, whereby the said late Queen, praetextu lapsus temporis, in default of the Patron, Or­dinary, and Metropolitan, Ecclesiae praedictae pro tempore existen­tis dictae nuper Reginae devolutae by her Prerogative; afterward, that is, tertio die Decembris, 28 Eliz. by her Letters Patents under the Great Seal, bearing date the said year and day at [Page 54] Westminster, to the said Church, then being void, presented the said James White, who was admitted, instituted, and inducted, tempore pacis, &c.

That the said James White being so Rector of the said Church, and the said Richard Jervis seis'd of the said Mannor to which the said Advowson pertained, &c. the said Richard after, at Norfield aforesaid, died so seis'd.

After whose death, the same descended to one Thomas Jervis Esquire, as Son and Heir of Richard, and from him descend­ed to one Sir Thomas Jervis Knight, who enter'd, and was seis'd, and so seis'd the said Sir Thomas Jervis, 30. March. 14 Car. 1. March the 30th. 14 Car. 1. by his Deed in writing, seal'd at Norfield aforesaid, granted to one Phineas White the Advowson of the said Church, for the first and next avoidance only, whereby the said Phineas was possessed for the next avoidance of the said Advowson, and so possessed, the said Church became void by the death of the said James White, which was the first and next avoidance after the said Grant to Phineas.

Phineas, by virtue of his said Grant, presented one Timothy White his Clerk, who was thereupon admitted, instituted, and inducted, tempore pacis tempore Car. 1.

The said Timothy being Rector, and the said Sir Thomas Jervis seis'd as aforesaid, The said Sir Thomas died seis'd at Norfield aforesaid; and the said Mannor, with the Appurtenan­ces, descended to Thomas the Defendant, as his Son and Heir, who enter'd, and was, and yet is seis'd, and being so seis'd, the said Church became void by the death of the said Timothy White, and the said Thomas Jervis, the Defendant, presented the other Defendant, John Hunckley, who was admitted, insti­tuted, and inducted, long before the Writ purchas'd.

Then Traverseth Absque hoc, That the late Queen was seis'd of the said Advowson, with the Chappel of Coston aforesaid in gross, and as of Fee, Jure Coronae suae, Et hoc paratus est verificare, and demands Judgment si Actio.

John Hunckley the Incumbent taking by protestation, That the late Queen was not seis'd, nor presented, as by the Decla­ration is suppos'd; for Plea saith, That Richard Jervis was seis'd of the Mannor of Norfield, with the Appurtenances, in Com. praedicto, and the Advowson of the said Church appertain'd thereto, and pleads the same Plea verbatim, as to the Queens Presentation of White, and all other things, as Jervis the Pa­tron pleaded, and the presentation of himself, and that he was, by the presentation of the other Defendant Jervis, admitted, [Page 55] instituted, and inducted into the said Church, Septemb. 15. 1660. and Traverseth.

Absque hoc, that the King was seis'd of the said Advowson and Chappel in Gross, as of Fee, Et hoc paratus est verificare, and de­mands Judgment.

The Attorney General replies, and as to the Bishop, claiming nothing, but as Ordinary, Demands Judgment, and a Writ to the said Bishop, and hath it with a Cesset Executio, until the Plea determined between the King and the other Defendants.

And as to the Plea of the said Thomas Jervis the Patron, the Attorney maintains the Seisin of the late Queen, and of King James, King Charles the First, and of the King that now is, of the said Advowson of the said Church and Chappel, as by the Count before is declared.

And that the said Phineas White of his own wrong, by usurpa­tion upon the late King Charles the First to the said Church, then void by the death of the said James White, presented the said Ti­mothy White, and Traverseth.

Absque hoc, That the Advowson of the said Church was, or is, pertaining to the Mannor of Norfield, and demand Judgment, and a Writ to the Bishop.

And as to the Plea of the Incumbent, the Attorney replies as before to the Patrons Plea, That the late Queen, King James, King Charles the First, and the King that now is, were seis'd of the said Advowson in gross, as of Fee; and that the said Phineas White presented the said Timothy, by usurpation upon King Charles the First, and Traverseth the appendancy of the Advowson, Eccle­siae praedicta, to the Mannor of Norfield.

The Patron Jervis rejoyns and demurs upon the Attorney's Replication, as insufficient, and assigns for Cause, that the At­torney hath Travers'd matter not traversable, and that the Tra­verse ought to have been omitted out of the Replication, as also, that the said Plea is repugnant in it self, and wants form.

And John Hunckley the Incumbent rejoyns, That the said Advowson is pertaining to the said Mannor, as he alledged in his Plea before, Et de hoc ponit se super Patriam, and the Attor­ney similiter.

Hill. 21 & 22. Car. II. C. B. Rot. 606. Thomas Rowe Plaintiff, and Robert Huntington Defendant, in a Plea of Trespass and Ejectment.

THE Plaintiff declares, That Thomas Wise, 1. April, 21 Car. 2. at Hooknorton in the County of Oxford, by his Indenture produc'd, dated the said day and year, demis'd to the said Thomas Rowe the Mannor of Hooknorton, with the Appur­tenances, 4 Messuages, 100 Acres of Land, 50 Acres of Mea­dow, 400 Acres of Pasture, and 50 Acres of Wood, with the Appurtenances, in Hooknorton aforesaid. As also the Rectory and Vicaridge of Hooknorton, and the Tithes of Grain, Hay, and Wool, renewing in Hooknorton aforesaid; To have and to hold the Premisses from the Feast of the Annunciation of the Virgin, then last past, to the end and term of Seven years then next ensu­ing.

That by virtue thereof, the said Thomas Rowe the Plaintiff, into the said Mannor and Tenements enter'd, and of the said Re­ctory, Vicaridge, and Tithes, was possessed.

That the said Robert Huntington the Defendant, the said First of April, with Force and Arms, into the said Mannor, Rectory, Vicaridge and Tithes, entred, and him Ejected against the Peace, to his great damage, and whereby he is endamaged 100 l.

The Defendant Huntington pleads not Culpable. And thereupon Issue is Ioyn'd.

The Jury give a Special Verdict, That as to the Trespass and Ejectment in the said Mannor and Tenements, and in the said Rectory, Vicaridge, and Tithes aforesaid, excepting 200 Acres of Pasture, parcel of the said Mannor of Hooknorton, That the De­fendant Huntington is not Culpable. And as to the said 200 Acres, they say, that long before the said Trespass and Ejectment,

That is, the 14th. day of October, 1. Mar. one Robert, then Bishop of Oxford, was seis'd in his Demesne, as of Fee in Right of his Bishoprick of the said Mannor, whereof the said 200 Acres are parcel, and so seis'd the said 14th. of October, 1 Mariae, at Hook­norton [Page 67] aforesaid, by his Indenture of Demise, seal'd with his E­piscopal Seal, Dated the said day and year, and shew'd in Evidence to the Jury, made between the said Bishop of the one part, and John Croker of Hooknorton Esq; of the other part, for Considera­tions in the said Indenture of Demise mentioned, had demis'd, and to farm lett, to the said Croker; Among other things, the said Mannor with the Appurtenances, whereof the said 200 Acres are parcel, To have and to hold, to the said Croker and his Assigns, from the end and expiration, prioris Dimissionis in eadem Indentur. Mentionat. for and during the term of Ninety years then next fol­lowing.

The tenor of which Indenture of Demise follows, in haec ver­ba:

This Indenture made the Fourteenth day of October, 1 Mariae, &c. Between the said Bishop and the said John Croker, &c witnes­seth, That where the said Bishop, by the name of the Reverend Father in God, Robert King, Abbot of Tame, and Commendatory of the late Monastery of Oseney, in the County of Oxford, and the Covent of the same, by their Deed Indented, Dated 6. April, 29 Hen. 8. with the Consent of their whole Chapter, Have demis'd, and to farm lett,

All that their Mansion or Farm of Hooknorton, with the Appur­tenances in the said County, and all the Mansion and Farm Demesne, Lands, Meadows, Leasowes and Pastures, with all Commodities and Profits to the said Mannor belonging or appertaining, and the customary works of all the Tenants, not granted nor remitted be­fore the Date of the Deed; And the Parsonage of Hooknorton, and all Lands, Tenements, Meadows, Tithe Corn and Grain, Hay and Wool, and all Profits to the said Parsonage belonging; And also the Vicaridge of Hooknorton aforesaid, with the Appurtenances; And all Lands, Tithes, Profits, to the said Vicaridge belong­ing.

And also a Pasture called Prestfield, with the Appurtenances in Hooknorton aforesaid; And all Commons of Sheep, call'd by the name of their Founders Flock; And the Hay of a Meadow, call'd Brown-mead, with the customary works thereto pertaining; And the Tithe and Duty of a Mead, call'd Hay-mead in Hooknorton afore­said.

Except and reserved to the said Abbot and Covent, and their Successors, All Tenants and Tenantries, then, or after to be set by Copy of Court-Roll, All Fines, Reliefs, Escheats, Herriots, A­merciaments, Pains, Forfeits, and all Perquisites of Courts Barons and Leets.

To have and to hold the said Farm or Mannor, and all other the Premisses, with the Appurtenances, Except before excepted to the said Croker, his Executors and Assigns, from the Feast of the An­nunciation of our Lady last past before the Date of the said Deed, Indented for the term of Eighty years, rendring to the said Abbot, Covent, and their Successors yearly, during the said term.

For the said Mannor and Farm 9 l. For the said Parsonage 22 l. 2 s. For the Common of Sheep, Hay and Custom-works of Brown-Mead 5 l. For the Wool 12 l. For Prest-field 6 l. 13 s. 4 d. For the Vicaridge 6 l. 13 s. 4 d. of lawful mony, &c. at the Feasts of St. Michael the Arch-angel, the Annunciation of our Lady, by e­qual portions, As by the same Deed Indented, amongst divers other Covenants and Grants, more plainly appeareth.

And where also, as the said Bishop, by his other Deed Indented, Dated 8. October, 1 Edw. 6. hath demis'd and to farm lett, unto the said John Croker, all that his Mannor of Hooknorton aforesaid, with all Messuages, Tofts, Cottages, Orchards, Curtilages, Lands, Tenements, Meadows, Leasowes, Pastures, Feedings, Commons, waste Grounds, Woods, Underwoods, Waters, Mills, Courts-Leets, Fines, Herriots, Amerciaments, Franchises, Liber­ties, Rents, Reversions, Services, and all other Hereditaments what­soever they be, set, lying, and being in Hooknorton aforesaid, in the said County, with the Appurtenances.

Except certain Lands and Tenements in the said Town in the Tenure of the said John Croker, for certain years then endu­ring.

To have and to hold, All the said Mannor of Hooknorton, and all other the Premisses, with the Appurtenances, Except before ex­cepted to the said John Croker and his Assigns, from the Feast of St. Michael the Arch-angel last past, before the Date of the said latter Deed Indented, to the full end of the term of Ninety years from thence next ensuing.

Rendring to the said Bishop and his Successors yearly, during the said term, Eleven pounds, four shillings, and nine pence, at the Feasts of the Annunciation and St. Michael the Arch-angel, by equal porti­ons, as by the said latter Deed, among other Covenants and Grants, more plainly appears.

The Reversion of all which Premisses are in the said Bishop, and to him and his Successors do belong, as in Right of his Church.

Now witnesseth, That the said Bishop hath demis'd,Ind. 1 Mar. and to Farm lett, and by these Presents doth demise, &c. to the said John Croker, All the said Mannor and Farm of Hooknorton, toge­ther with all Messuages, &c. And all and singular other the Pre­misses, with the Appurtenances, in the said several Indentures specified and contain'd.

To have and to hold the said Premisses contain'd in the said first Indenture, to the said John Croker, his Executors and Assigns, from the end, expiration, and determination of the said term spe­cified in the said first Indenture, unto the end and term of Ninety years next ensuing, yielding therefore yearly to the said Bishop and his Successors, for the said Premisses, specified in the said first Indenture, such and like Rents as in the said first Indenture are reserv'd, at the same daies and times; and

To have and to hold, All the Premisses specified in the said lat­ter Indenture, from the end, expiration, and determination of the said term specified in the said latter Indenture, until the end and term of Ninety years then next ensuing: Rendring yearly for the Premisses in the said latter Indenture specified, such and like Rent as is reserv'd by the said latter Indenture, and at the same days and times.

Then follows a Clause of Distress if the Rent be behind for a Month.

And if the said several yearly Rents reserved by these Indentures, or any of them be unpaid in part, or in all, by the space of one quarter of a year after any the said Feasts, at which the same ought to be paid, and be lawfully demanded, and no sufficient Distress upon the Premisses, whereupon the same is reserved to be found; Then to be lawful for the said Bishop, and his Successors, into such of the Premisses, whereupon such Rents being behind, is, or are re­served, to re-enter, and to have as in their former estate.

And the said Jurors further say, That the aforesaid Indenture of Demise afterwards, the Tenth of May, Anno 1 Mar. aforesaid, by the then Dean and Chapter of Oxford, under their Common Seal, was confirm'd, and find the tenor of the Confirmation in haec verba.

They further find, That the said Two hundred Acres of Pasture, at the time of making the said Indenture, and at the time of the Trespass and Ejectment, were, and yet are parcel of the said Mannor of Hooknorton.

They further find, That the Rent for all the said demis'd Pre­misses, reserv'd by the said Indenture for one whole half year, ended at the Feast of Saint Michael the Arch-angel, 1643. was be­hind and unpaid; and that Robert, late Bishop of Oxford, the Nine and twentieth and Thirtieth Day of December, 1643. into the Parsonage House then, and by the Space of Forty or Fifty years before, reputed and call'd the Mannor-house; And that he then, at the said Parsonage-house, by the space of One hour next before the Sun-setting of both the said two daies, remain'd and continued until, and by the space of One hour after Sun-setting of both daies, demanding, and then did demand the Rent for the half of the year aforesaid.

They further say, That there was no sufficient Distress upon the Premisses at the time of the demand of the said Rent thereupon; And that the said Bishop, the said Thirtieth Day of December, 1643. aforesaid, into the said Premisses enter'd.

They further say, That all the Right, State, and Title, term of Years, and Interest of, and in the Mannor, Tenements, Re­ctory, and other the said Premisses, by virtue of the said Inden­ture of Demise by the said late Bishop, as aforesaid, granted to the said John Croker, by mean Assignments came to the said Tho­mas Wise.

That by virtue of the said several Assignments, the said. Tho­mas Wise afterwards, the Fourth of January, 1667. into the Pre­misses enter'd, and was possessed for the Residue of the term of years, prout Lex postulat. That he so possessed, afterwards the said First Day of April, 21 Car. 2. at Hooknorton afore­said, demised to the said Thomas Rowe the said Mannor and Te­nements, Rectory and Vicaridge whereof the said Two hundred Acres are parcel.

To have and to hold, to the said Rowe and his Assigns, from the Feast of the Annunciation last past, for the term of Seven years then next ensuing: That by virtue thereof, the said Rowe enter'd, and was possessed, until the said Robert Huntington, the said First of April, 21 of the King, by Force and Arms, by the command of the foresaid Robert, late Bishop of Oxford, into the said Two hundred Acres, upon the Possession of the said Thomas Rowe, to him demised by the said Wise, as aforesaid, for the said term, not yet past, enter'd and Ejected him. But whether upon the whole matter, the said Robert be Culpable of the said Trespass and Ejectment, they re­fer to the Court.

By this Verdict, in the recited Indenture, if any such were, of 29 H. 8. the Farm of Hooknorton, and the Mannor of Hook­norton, were the same thing; and the Mannor known and de­mis'd by the name of the Farm, as well as the Farm by name of the Mannor. The Mannor of Hooknorton being call'd the Farm of Hooknorton, because it was lett to Farm, and rented out; and the Farm called the Mannor, because it had the Requisits of a Mannor, viz. Demesne & Services.

Therefore where it is recited in the Deed 1 Mar. That the Ab­bot and Covent of Osney, had by their Deed of 29 H. 8. demis'd to John Croker, All that their Farm of Hooknorton, it was the same, as if it had been the Mannor of Hooknorton.

1. For that the next words are, And all that Mansion Demesne, Lands, Meadows, Leasowes, and Pastures to the said Mannor be­longing, and no Mannor is named before, but the Farm which was known to be the Mannor.

2. The Habendum of the Premisses demised, is, To have and to hold the said Farm or Mannor of Hooknorton, which also shews they were the same.

3. In the render of the Rent, it is yielding and paying for the said Mannor and Farm Nine pounds.

4. By the Demise of 1. Mar. subsequent, the said Mannor or Farm is demis'd.

And the 200 Acres in question, being found to be parcel of the said Mannor, consequently they are recited to be demis'd by that Indenture suppos'd of 29 H. 8. But the Jury find not the Mannor and Farm to be the same.

The next thing to be noted is, That by that recited Inden­ture of 29 H. 8. if any such were, several Rents were reserved upon several particulars, and not one intire Rent upon the whole, namely 9 l. upon the Mannor or Farm; Another Rent up­on the Parsonage, another on the Vicaridge; and so upon several other particulars.

And by the Lease of 1 Mariae, it is yielding and paying such, and the like Rents, in the Plural Number, as are reserved by the said first Indenture. So as the Rents were several in the first In­denture, by the meaning of that of 1 Mar.

And yielding and paying such and like Rent, as is reserv'd by the latter Indenture, for the Premisses therein contain'd. Here it is such Rent, in the singular number, as is reserv'd, not as are re­served, as in the former.

Then in the Clause of Re-entry for Non-payment, it is that the Re-entry should be into such of the Premisses, whereupon such Rent being behind was reserv'd, therefore not into all the Premisses.

Whence it follows, That there being several Rents, seve­ral Demands were respectively to be made before Re-entry, as well for those reserv'd in the first Indenture, as for that in the second Indenture recited.

And it being found, That the Demand made by the Bishop at the Parsonage-house in Forty three, was for the half years Rent reserved of all the Premisses demis'd by the Indenture of 1 Mar. it follows, That more Rent was demanded than was payable in any one place, consequently the Demand not good, nor the Re-entry pursuing it; and thus far the Case is clear a­gainst the Defendant: For the Lease of 1 Mar. could not be a­voided by that Re-entry, in all, nor in part, if the Leases of 29 H. 8. and 1 E. 6. were well and sufficiently found by the Jury to have been made.

Note, The Jury finding that the Rent reserved for all the Premisses, was behind for half a year, ending at Michaelmas, 1643. not expressing the Sum of the Rent, is no more than to find, That no Rent was paid for the said half year.

And their finding, That the Bishop did demand the said half years Rent, finding no Sum by him demanded, is no more than to find, That he demanded such Rent as was due for the said half year. So as notwithstanding the Juries finding, That no Rent was paid for the said half year, and their finding of the Bishop's demanding of what was due for the said half year; It doth not therefore follow, That they find any Rent to be reserv'd by the said Lease of 1. Mar. or that there was a Demand of any Rent admitted to be so reserv'd.

But if the Leases of 29 H. 8. and 1 E. 6. be not well and sufficiently found by the Jury to have been made; The Conse­quent then is, That in Law there are no such Leases; for de non apparentibus, & non existentibus eadem est ratio ad omnem juris effectum.

And then it follows, That the Lease of 1 Mar. of all the Premisses specified in the Indenture of 29 H. 8. and of all speci­fied in the Indenture of 1 E. 6. for Ninety years Habendum, from the respective Expirations of the terms specified, and under the respective Rents reserv'd by those Indentures, will be void as to the terms intended to be granted, and the Rents reserv'd, be­cause the beginning of the terms and particulars of the Rents [Page 73] can be known, but from the Demises 29 H. 8. and 1 E. 6. when no such Demises are, because the Jury hath found no such.

For this the Case of 3 E. 6. reported by the Lord Brooks, in his Title of Leases, N. 62. is clear, and in several Cases since ad­judg'd, is admitted for good Law.

The Case is,Br. tit. Leases, N. 66. 3 E. 6. If a man Leases Land for certain years to J. S. Habendum post dimissionem inde factam to J. N. finitam, and J. N. hath no Lease of the Land, the Lease to J. S. shall com­mence immediately for the term of years granted him.

So in our Case, the Lease of 1 Mar. of the Mannor and o­ther the Premisses granted to Croker for Ninety years, Haben­dum, as to some particulars, from the expiration of a former Lease granted 29 H. 8. And as to other particulars, from the expiration of a Lease granted 1 E. 6. when no such Lea­ses were granted, because not found to be granted. Therefore the Lease of 1 Mar. for Ninety years, shall commence immedi­ately from the Sealing, and consequently ended about the 21 or 22 of King Charles the First.

And then the Defendant Huntington's Entry, the First of A­pril, 21 Car. 2. by command of the Bishop, was lawful, the term of Ninety years granted 1 Mar. and then beginning, being long before expired.

And by the same Reason, If a Lease be granted to J. S. for Forty years, to commence after the expiration of the term gran­ted to J. N. and under the same Rents as are reserv'd in the Demise to J. N. (who in truth had no Demise) The term of Forty years to J. S. shall commence immediately, because the number of years are express'd, but without any Rent; because the reservation of such Rent as was reserv'd in the Demise to J. N. who had no Demise, must be no Reservation of Rent.

And consequently in the present Case, though the Lease for Ninety years, which number of years is express'd, be a good Lease, to commence immediately from 1 Mar. yet the Reser­vation of the Rent being such thereupon as was reserv'd by the Leases of 29 H. 8. and 1 E. 6. when in truth there are no such Leases, must be a void Reservation upon the Lease of 1 Mar. because there is no expression of any Rent, but that which was reserved in Leases, which are not all Ad omnem Juris effectum in this Case, because they are not found.

So as the sole Question is reduc'd to this, Whether by this Verdict the Iury have well and sufficiently found any Lea­ses 29 H. 8. and 1 E. 6. or either of them were made to Cro­ker?

1. And it seems clear, That the Jury have not in express terms, and positively found, either of those Leases to have been made, for then they must have found that the Abbot Com­mendatory of Osney, and the Covent there, had made such Lease to Croker, dated 29 H. 8. &c. and in like manner that the said Abbot being then Bishop of Oxford, had made 1. of E. 6. a Lease to Croker for such a term of years, and under such Rents and Reservations, &c. but there is no such finding in this Ver­dict.

2. The second Inquiry is, Whether the Iury having found (as they have) that the then Bishop of Oxford did by Indenture, dated 1. Mar. Lease to Croker the Mannor of Hooknorton for Ninety years, which Indenture they find in haec verba, in which there is a recital of a Lease made 29 H. 8. and of another 1 E. 6. to the said Croker (but neither in haec verba) be not a good and sufficient finding of such recited Leases, to have been a­ctually made, because recited in the Lease of 1 Mar. which is expresly found to have been made.

But certainly, it can never follow that the reciting of the Deeds of 29 H. 8. and 1 E. 6. to have been made in the Deed of 1 Mar. which is expresly found to have been made, is a suffi­cient finding of those two other Deeds to have been actually, & re vera made; for the strange consequence of that would be,

1. That no Deed really seal'd and deliver'd between the par­ties to it, and so agreed to be, could make recital of a thing which was false, or which was not according to the recital, which is a sensless Assertion.

2. By that reason all Fables recited, nay, all sorts of re­cited lies, at least (all such as had possibility of being true) would become truths, whether orally recited, or in Books, Let­ters, or other Writings; for the difference of recital any other way, and recital in a Deed, will not vary the Case, because the recital in a Deed may as equally be false, as in other waies of recital; unless a man think that any false recital in a Deed shall be a conclusion against the parties, and such as claim from them, which I shall anon make appear to be false.

[Page 75] 3. It were perniciously dangerous, That Recitals in a true Deed, that other Deeds were seal'd and deliver'd, should make such Deeds recited in Law, to be true Deeds; for then by feign'd Recitals of other Deeds in a true Deed, men might make what Titles they pleas'd.

4. It would be worse than actual forging of such recited Deeds, because the forgery of Deeds is punishable, and thereby such Deeds made ineffectual; but false Recitals are neither punisha­ble, nor the effect of them destroy'd, if they should be admitted: But this is so clear, that I shall say no more in it.

If then those two Deeds be neither directly found, nor the finding a Recital of such Deeds in the Deed of 1 Mariae, be a suf­ficient finding of them, it remains, if they be found at all, they must be found by Inference and Argument only. And as for that, though in a general Verdict, finding the point in Issue, by way of Argument, for the Plaintiff or Defendant, be never per­mitted, not though the Argument be necessary and concluding.

As in an Action of Debt brought for 20 l. the Defendant plead­ed payment, and issue thereupon. The Iury found that the De­fendant debet the 20 l. this was no good Verdict; for the mat­ter in issue, payment or not, was not directly found, but by way of Argument, though the Argument was necessary there,Rolls 693. Barry & Phil­lips, N. 30. that the Defendant did not pay the 20 l. which he did owe, for he could not both pay it, and yet owe it. And this Case was affirmed in Error.

Yet I confess in a Special Verdict, That strictness is not ri­gidly observ'd, where the Iury find only the matter of Fact, when in a general Verdict they find both Fact and Law, that is, the whole matter in issue; yet in a special Verdict they must find the Case in Fact clear, and without Equivocation to common intent, else they find nothing whereupon the Court can determine what the Law is.

There are no words in this Special Verdict that can be strain'd to a finding of the Deeds of 29 H. 8. and 1 E. 6. by way of In­ference and Collection, but these.

They find that Robert, Bishop of Oxford, by Indenture dated the 14th. of Octob. 1 Mar. demis'd to Croker the Mannor of Hooknorton, with the Appurtenances, inter alia Habendum, to the said Croker, and his Assigns, from the end and expiration, prioris dimissionis in eadem Indentur. mentionat. for and during the term of 90 years then next fol­lowing: The tenor of which Indenture follows in haec verba, and so find the Indenture of 1 Mar. verbatim, but not the tenor dictae prioris dimissionis, for if they had so found, it had varied the Case.

Which finding only of the Deed of 1. Mariae, verbatim, and that thereby the Mannor of Hooknorton was demised for Ninety years, a fine prioris dimissionis in the Indenture of 1. Mariae men­tioned, it cannot be made out by any rational Inference, That they have clearly found such a former Demise, or other­wise than as recited to have been by the Indenture of 1. Ma­riae.

For to find that such a Letter was written, or such a Book made by J. S. is not to find that all things, or any thing contain'd or mention'd in that Letter or Book, are, or is true.

No more finding a certain Deed, as that of 1 Mariae, to be seal'd and deliver'd by J.S. is not a finding that every thing men­tioned or recited in that Deed, is true.

Trin. 22. Car. II. C. B. Rot. 461. Richard Edgcomb Knight of the Bath, Executor of Pierce Edgcomb Esquire, his Father, is Plaintiff. Rowland Dee Administrator of Charles Everard Esquire, during the Minority of Charles Everard, Son of the Intestate, Defendant.

Hill. 18 & 19 Car. II. C. B. Thomas Price is Plaintiff, against Richard Braham, Eliza­beth White, Elianor Wakeman, and Richard Hill Defen­dants, In an Action of Trespass and Ejectment.

THE Plaintiff declares, That one Henry Alderidge, the First of November, 18 Car. 2. at the Parish of St. Mar­garets Westminster, demis'd to the Plaintiff and his Assigns, an Acre of Land, with the Appurtenances, in the Parish of St. Margarets aforesaid.

Habendum from the Thirtieth of October then last past, for the term of Five years next ensuing; by virtue whereof he en­tred, and was possessed, untill the Defendants afterwards, the same day entred upon him, and did Eject him, to his damage of 20 l.

To this the Defendants pleaded, That they are not Culpa­ble.

Special Verdict is found. By which it is found, That the Defendants are not Culpable of Entry and Ejectment in the said Acre, excepting a piece thereof, containing One hundred and Eighty Foot thereof in length, and Eight and twenty Foot in breadth.

And as to that piece they find, that the same, time out of mind, was a Pool, until within Twenty years last past, during which Twenty years it became fill'd with Mudd.

They find, That before the Trespass suppos'd, that is, the First of August, 1606. King James was seis'd, in right of the Crown, of the said Pool, and three Gardens, with the Appurte­nances, in St. Margarets aforesaid, in his Demesue as of Fee.

They find again, That the same First Day of August, 1606. A Water-work was built in the said Gardens, and the said Pool was thence us'd, with the said Water-work, until the Twelfth Day of March, in the Eleventh year of King James.

That King James so seis'd, the said Twelfth of March, by his Letters Patents under the Great Seal of England, bearing Date the said Twelfth of May, 11 Jac. in consideration of 70 l. 10 s. of lawful mony of England, paid by Richard Prudde, and for o­ther considerations him moving, at the nomination and request of the said Richard. Et de gratia sua speciali, ex certa scientia & mero motu for him, his Heirs and Successors, granted to the said Richard Prudde and one Toby Mathews, Gent. and to their Heirs and Assigns; among other things the said Three Gardens and Water-work thereupon erected, to convey water from the Ri­ver of Thames to divers houses and places in Westminster, and elsewhere, with all and singular the Rights, Members, and Ap­purtenances, of what nature and kind soever.

They further find, That the said King James, by his said Letters Patents, for the consideration aforesaid, for him, his Heirs and Successors, granted to the said Richard Prudde and Toby Mathew, their Heirs and Assigns (inter alia) Omnia & singula stagna, gurgites aquas, aquarum cursus, aquaeductus, to the said Premisses, granted by the said Letters Patents, or to a­ny of them, or to any parcel of them, quoquo modo spectantia, pertinentia, incidentia, vel appendentia, or being as member, part, or parcel thereof, at any time thentofore had, known, ac­cepted, occupied, used, or reputed, or being together with the same, or as part, parcel, or member thereof, in accompt or charge, with any of his Officers, as fully and amply as the same were formerly held by any Grant or Charter, Ac adeo plene libere & integre, ac in tam amplis modo & forma, prout i­dem nuper Rex aut aliquis progenitorum sive predecessorum fuo­rum premissa praedict. per easdem Litteras Patent. prae-concess. & quamlibet seu aliquam inde partem, sive parcellam habuerunt, ha­buissent, vel gavisi fuissent, & habuissent vel habere uti & gaudere debuiffent aut debuit.

They further find, That the said Pool was necessary for the Water-work aforesaid, and that it could not work without the said Pool.

They further find, That the King, who now is, by his Let­ters Patents dated at Westminster the Fifteenth of February, the Eighteenth of his Reign inroll'd in the Exchequer, in conside­ration that Henry Alderidge Gent. a piece of Laud, and other the Premisses granted by the said Letters Patents, cover'd with water and hurtful mudd, would fill up at his proper charges, and perform the Covenants and Agreements in the Letters Patents contain'd, for him, his Heirs and Successors, granted [Page 108] the aforesaid piece of Land, containing as aforesaid in length and breadth, by the name of All that piece of Land or broad Ditch, lying and being in the Parish of St. Margarets Westmin­ster, with particular Boundaries thereto expressed,

To have and to hold from the Feast of the Annunciation last past, for the term of One and twenty years thence next ensu­ing.

They find, That the said Henry Alderidge entred into the Premisses, then in the possession of the Defendants, and so pos­sess'd, made the Lease to the Plaintiff, Habendum to him and his Assigns, as in the Declaration.

That the Plaintiff entred by virtue thereof into the said piece of Land, and was possess'd, till the Defendants Ejected him.

And if upon the whole matter, the Defendants be Culpable, they assess damages to 12 d. and costs to 40 s. And if they be not, they find them not culpable.

The first Question is, What can pass by the name of Stag­num or Gurges? for if only the water, and not the soyl, passeth thereby, the Question is determined, for the piece of Land con­taining such length and breadth, cannot then pass.

Fitzh. N. Br. 191. b. Lett. H.By the name of Gurges, water and soyl may be demanded in a precipe.

34 Ass. pl. 11. Coke Litt. f. 5, 6. ad finem.By the name of Stagnum the soyl and water is intend­ed.

1. Where a man had granted to an Abbot, totam partem piscariae suae, from such a Limit to such a Limit, reservato mihi Stagno molendini mei. And the Abbot, for a long time af­ter the grant, had enjoyed the fishing of the Pool. It was ad­judg'd, the Reservation extended to the water and soyl; but the Abbot had the fishing by reason of long usage after the Grant, which shewed the Intent.

1606. 4 Jac.The next Question is, When the soyl may pass by the word Stagnum, whether it may, as belonging and pertaining to the Water-work erected 6 Jac. and granted away with the Pool, as pertaining to it in 11 Jac. as it is found: or to the Gardens, which seems a short time, especially in the Case of the King, to gain a Reputation, as belonging and appertaining.

As to this Question, things may be said pertaining in Rela­tion only to the extent of the Grant. As an antient Messuage being granted, with the Lands thereto appertaining, and if some Land newly occupied, and not antiently with that Messuage, shall pass as appertaining, is a proper Question; but that is a Question only of the extent of the Grant, and what was intended to pass, and not of the nature of the Grant.

Four Closes of Land, part of the possessions of the Priory of Lanceston, came to King Henry the Eighth, and after to Queen Elizabeth, usually call'd by the Name of Drocumbs, or Northdro­cumbs. A House was built 21 Eliz. as the Book is, by the Far­mers and Occupiers of these Closes upon part. In 24 Eliz. she granted, Totum illud Messuagium vocat. Drocumbs, ac omnia terras & tenementa dicto messuagio spectantia in Lanceston.

After King James made a Lease of the Four Closes call'd Northdrocumbs, or Drocumbs; Gennings versus Lake, 5 Car. 1. Crook 168. and upon question between the Queens Patentee and the Kings, Iudgment was given for the Queens Patentee: Because, though the House was newly erected before the Queens Grant, yet the Land shall be said belonging to it, and it shall pass by such name as it was known at the time of the Patent; and that was a stronger Case than this, there being but Three or Four years to give Reputation of belonging or appertaining.

Another meaning of the words belonging or appertaining, is, when they relate not to the extent or largeness of the Grant, but to the nature of the thing granted. As if a man newly erect a Mill in structure, and hath no Water-course to it, if he grants his Mill with the Appurtenances, nothing passes but the structure. But if he, after the structure, acquire or pur­chase a Water-course to it, and grant it with the Appurtenan­ces, the Water-course passes, because the Mill cannot be used without it. So it is for the Mill-damm or Bank, or the like. So if he acquire an inlargement or bettering of his Water-course, that additional water shall pass as pertaining, how late­ly soever acquired.

So if a man grants his Saddle, with all things thereto be­longing, Stirrops, Girths, and the like pass.

So if a man will grant his Viol, the Strings and Bow will pass.

And the Pool was belonging and appertaining to the Water-work in this last sense, as pertaining to the nature of the thing granted, without which it could not be us'd; for the Iury find,

Quod Stagnum praedictum fuit necessarium pro structura (Anglicè Water-work) praedict. quodque eadem structura sine eodem Stag­no operare non potuit.

And where a thing is so pertaining to the nature of the thing granted, it is belonging and pertaining immediately as soon as the thing is erected, and it is annexed to it.

And note, the Iury do not find that aqua Stagni praedict. but the Stagnum it self, was necessary for the Water-work. Nor do they find that the Water-work could not operare sine aqua Stag­ni, but sine Stagno praedict. And thereby they find that the Water and Soyl, which Stagnum signifies, was necessary for the work, and it could not work without it.

Pasch. 19 Car. II. Henry Stiles Plaintiff; Richard Coxe Baronet, Richard Coxe Esquire, John Cromwell, Thomas Merrett, and Charles Davies Defendants; In an Action of Tres­pass, of Assault, Battery, and False Imprisonment.

1. THE Plaintiff declares, That the Defendants, the last day of December, in the Seventeenth year of the King, in the Parish of St. Mary Bow in the Ward of Cheap in London, assaulted, wounded, and kept him in Prison by the space of two days next following, to his Damage of One hundred pounds.

2. The Defendants plead, They are not Culpable of the Tres­pass, Assault, Battery, &c. aforesaid.

3. The Iury find Richard Coxe Esquire, and Charles Davies, not Culpable accordingly.

4. And as to the rest of the Defendants they find specially, That before the suppos'd Trespass, that is, the Eight and twentieth day of September, in the Seventeenth year of the King, one Richard Baughes Esquire, one of the Iustices of the Peace of the County of Gloucester, issued his Warrant under his Hand and Seal to the Constable and Tithingmen of Dumbleton in the said County, to apprehend and bring before him the Plaintiff Henry Stiles, and others, to answer to such matters of Mis­demeanour, as on his Majesties behalf, should be objected a­gainst them by Sir Richard Coxe Baronet, then high Sheriff of the said County.

They find the Warrant in haec verba.

5. That the said Warrant was afterwards, and before the Trespass, delivered to one Samuel Williams, Constable of Dum­bleton, to be executed, and that upon the said last day of De­cember, mentioned in the Declaration, being Sunday, immedi­ately before Divine Service, the Plaintiff sitting in a Seat of the said Church of Dumbleton, by order of Richard Dasney Esquire, his Master, who claimed right to the said Seat, the said Plaintiff being no Parishioner there, nor dwelling in the said Parish, the said Samuel being then Constable, arrested the said Plaintiff.

[Page 112]6. That the said Plaintiff at first resisted, and refused to o­bey the said Warrant, and after obey'd it. That the said Sa­muel the Constable, required the said Defendant Thomas Mer­ret, to assist him to convey him before a Iustice of the Peace. But the said Samuel, Thomas Merret, and John Cromwell, con­vey'd him to the House of the said Samuel in Dumbleton.

7. Et tunc, the aforesaid Richard Coxe Miles, sent for the said Samuel; at the House of the said Samuel in Dumbleton afore­said, Et praecepit eidem Samueli, to lay the Plaintiff in the Stocks, and thereupon the said Samuel, John, and Thomas, con­vey'd the Plaintiff fromwards the way to the said Richard Baughes Iustice of the Peace, and about Eleven of the Clock of the same day in the morning, put the Plaintiff in the Stocks.

8. They find the Act of 21 Jac. particularly cap. 12. And the Recital therein of the Act of 7 Jac. cap. 5. being an Act intitled, An Act for easie pleading against troublesome and con­tentious Suits against Justices of the Peace, Mayors, Constables, &c.

9. And find particularly. That it was Enacted by the said Parliament, Quod si aliqua Actio, Billa, &c.

10. But whether upon the whole matter by them found, the said Sir Richard Coxe Baronet, John, and Thomas are Cul­pable, they know not. Et petunt advisamentum Curiae in Prae­missis.

11. And if upon the whole matter so found, the Court shall think quod actio praedicta possit commensari in London. Then they find the said Richard Coxe Baronet, John, and Thomas Culpable of the Trespass, and assess damages to One hundred Marks, and Costs to Three and fifty shillings and four pence.

12. But if the said Court be of Opinion, That the afore­said Action could only be laid in the County of Gloucester, then they find the said Richard Coxe Baronet, John, and Thomas not Culpable.

The words of the Act of 21 Jac. cap. 12. and which are particularly found by the Iury, are

1. That if any Action, Bill, Plaint, or Suit upon the Case, Trespass, Beating, or False Imprisonment, shall be brought against any Justice of the Peace, Mayor, or Bayliff of City, or Town Corporate, Headborough, Portreeve, Constable, Tithingman, &c. or any of them, or any other, which in their Aid or Assi­stance, [Page 113] or by their Commandment, shall do any thing touching or concerning his or their Office or Offices, for or concerning any mat­ter, cause, or thing, by them or any of them, done by virtue or reason of their, or any of their Office or Offices. That the said Action, Bill, Plaint, or Suit, shall be laid within the County where the Trespass or Fact shall be done and committed, and not elsewhere.

2. And that it shall be lawful to every person and persons afore­said, to plead the general Issue, and to give the special matter in evidence. As by the Act of 7 Jac. cap. 5.

3. That if upon the Tryal of any such Action, Bill, Plaint, or Suit, the Plaintiff therein shall not prove to the Jury, Trespass, Beating, Imprisonment, or other Fact or cause of Action, Bill, Plaint, &c. was or were had, made, or committed within the Coun­ty wherein such Action, Bill, Plaint, or Suit, shall be laid, That then the Jury shall find the Defendant or Defendants, in every such Action, Bill, Plaint, or Suit, Not guilty, without having a­ny regard or respect to any Evidence given by the Plaintiff touch­ing the Trespass, or other cause of the Action, Bill, Plaint or Suit, &c.

4. If Verdict shall pass with the Defendant or Defendants, or if the Plaintiff therein become Non-suit, or suffer any discontinu­ance thereof, the Defendant or Defendants, shall have such double Costs and other Advantages, as by the Act of 7 Jac. cap. 5. is pro­vided.

The first Question upon this Special Verdict, is

Whether if any Officer in the Act mentioned, or any in his assistance, shall do things, by colour of their Office, not touch­ing or concerning their said Office, and shall be therefore impleaded? Or if they, or any of them shall be impleaded for or concerning any matter, cause, or thing by them, or any of them, done by pretence of their Offices, and which is not strictly done by virtue or reason of their Office, but is a mis­feasance in Law, shall have the benefit of this Act, of having the matter tryed in the County where the Fact was done, and not elsewhere?

If so,

1. They shall not have the Tryal for any matter touching their Offices in the County where the Fact was done, unless the [Page 114] Plaintiff please to lay it there, and if he so pleas'd, it might have been laid there before the Act of 21. which was purposely made to compel the laying of the Action where the Fact was done.

2. By such Exposition of the Act, the Action shall never be laid where the Fact was done; for if it may be laid elsewhere at all, if it be found upon the Tryal, That the Officers question'd did not according to their Office, there will be no cause to lay the Action in the proper County; for the Iury where the Action is laid, will find for the Plaintiff for the Misfeazance; and if it be found the Defendants have pursued their Office, wherever the Action is laid, the Iury will find for the Defendants, and then no cause to lay an Action in the County where the Fact was done; So Quacunque via data, the Act will be use­less.

3. If it can be laid in another County, without hearing E­vidence, it cannot be known whether the Officer hath mis­done, or not. How then can the Iury (as the Act directs) find the Defendants Not guilty, without regard or respect to the Plaintiffs Evidence; for then the Iury must regard the Evidence, to find whether the Officer hath mis-done, and not regard the Evidence at all, to find the Officers Not guilty, as the Act doth order.

Nor is there any inconvenience, because by the Intention of Law, whether the Officers have done justifiably, or not, without this Act of 21. the Action ought to be laid where the Fact was done; and the Act is but to compel the doing of that where an Officer is concerned, that otherwise fieri debuit, though fa­ctum valet not being done.

The second Question is, Whether upon the special points re­ferred to the Court by the Iury, they have found all the Defen­dants, or any of them, and whom, Not guilty?

It hath been admitted at the Barr, That the Defendants, ex­cepting Sir Richard Coxe, cannot be found culpable by this Act of 21. and it being a Trespass, that some may be guilty, and not others; which is true.

But the Question is not, Whether some of the Defendants might have been found guilty, and others not? but whether, as this Verdict is, all or none must be Culpable.

1. The Iury referr to the Court, Si actio praedicta potuit commensari in London, then they find all the Defendants culpable. And if actio praedicta potuit commensari tantummodo in the Coun­ty of Gloucester, then they find all the Defendants by name, Not Culpable.

So as the matter is, Whether this individual Action brought joyntly against all the Defendants, might be laid in London? For that is the Actio praedicta, not whether an Action might be laid in London for the Trespass against any of these Defendants? and in that first sense, Actio praedicta, could not be in London; for it could not be there laid, as to some of the Defendants.

2. Secondly, they referr to the Court, Whether Actio prae­dicta, which is this Action, jointly brought against all the De­fendants, could only be laid in the County of Gloucester; and if so, they find for the Defendants; to which the Court must an­swer, That this Action, so jointly brought, could only be laid according to Law, ad omnem Juris effectum, in the County of Gloucester.

3. Thirdly, if the Court should be of Opinion, That the Action was well laid, as to Sir Richard Coxe, but not the rest, the Iury find not him Guilty, and not the rest; for they find all equally Guilty, or equally not Guilty.

4. Fourthly, That which differs his Case from the rest, is, That he was not assistant or aiding to the Constable; for he bad, that is, praecepit, or commanded the Constable to put the Plain­tiff in Cippis.

But as to that, the ancient Law was both adjudg'd in Par­liament, and allowed, That it was contra consuetudinem Regni, that a man should be condemn'd in a Trespass, De praecepto or auxilio, if no man were convicted of the Fact done.

It was the Case in Parliament of Bogo de Clare, 18 E. 1. John Wallis Clerk, entred his House, and brought Letters of Citation from the Arch-bishop of Canterbury: Some of the Family of Bogo made Wallis eat the said Process and Wax there­to affixed, Et imprisonaverunt & male tractaverunt: For which, and the Contempt to the King, he brought his Action against Bogo; who pleaded, That he named no persons in certain, nor alledg'd that the Fact was done by his command, and demand­ed Iudgment thereupon, and was discharged.

Notwithstanding, by the Kings pleasure, for so enormous a Trespass, done in Contempt of the Church, for the Contempt done within the Verge, and in time of Parliament, and for the bad Example,

Bogo was commanded to answer the King of the Trespass done in his House, Et per Manupastos & Familiares suos; and a day given him to produce before the King and his Council, those of his Family: which was accordingly done, but they who were said to have done the Fact, were fled.

Et super hoc idem Bogo perit Judicium, si de Praecepto, missione vel assensu, si sibi imponeretur ad sectam Domini Regis respondere debeat, antequam factores principales, aliquo modo de facto illo convincantur. Whereupon Iudgment was given. Et quia per consuetudinem & legem Angliae, Nullus de praecepto vi & auxilio aut missione respondere debeat antequam factores aliquo modo convincantur; Consideratum est quod praedictus Bogo ad praesens eat inde sinedie, & praedictus Jo. le Wallis sequatur versus factores principales prout sibi viderit expediri si voluerit, & six persons manuceperunt praedictum Bogonem ad habendum ipsum coram Domino Rege ad respondendum ipsi Domino Regi ad vo­luntatem suam, cum praedicti factores de facto illo fuerint convicti, si Dominus Rex versus eum inde loqui voluerit.

A Iudgment in Parliament, at the Kings Suit, That it was against the Custome and Law of the Kingdom, to convict a man, de praecepto, auxilio, aut missione, in a Trespass, before some, who did the principal Trespass, were convicted.

And the reason of that Law is very pressing, for else a man may be found Culpable of aiding or precepting a Trespass to be done, when the doers of the Trespass are acquitted, and not Culpable, which is to be Culpable of aiding the doing of a thing never done, which is impossible.

It will be said, The Law in that Case is since alter'd, and otherwise practis'd. But who could alter a Law affirm'd by Judgment in Parliament, to be the Custome and Law of the King­dome, without an Act of Parliament to alter it, which was not; or at least an Error in another Parliament, if that might be, which is not so clear.

For this is not like a Judgment given in one Court, and after contraried in another, or in the Chequer Chamber. Any Law of the Kingdom might as well be alter'd without Act of Parlia­ment, as this:

5. However letting that pass; but as the Law is now taken, no man can be guilty of aid or assistance to a Trespass not done, and which is the same whereof the Actors are acquitted.

But in this Case, They that put the Plaintiff in the Stocks are found not Guilty, and another Defendant found Guilty for bidding him be put in the Stocks.

6. Another reason is, That Coxe cannot be Culpable of a Trespass, which cannot, or must not be proved (which is the same) But by the Statute no regard or respect is to be had of the Evidence proving the Trespass, if the Fact be not proved to be done where the Action is laid: Therefore there can be no [Page 117] Evidence against Coxe, for Evidence not to be regarded, and not at all, is the same.

7. If the other Defendants cannot by the Statute be found Culpable, because they were aiding and assisting the Constable, though in an undue execution of his Office, no more can Coxe: For aid or assistance may be by direction or precept, as well as by corporal strength: And therefore, if they be free for assisting to put the Plaintiff in the Stocks forcibly, Coxe is free for ad­vising and bidding him be put there directively.

8. Lastly, the Statute intends like benefit to the Defendants, when the Fact is not proved to be done where the Action is laid; as if the Plaintiff became Nonsuit, or suffer'd a discontinu­ance. But in case of Nonsuit or Discontinuance, all the De­fendants were to have their double Costs both by 7 and 21 Jac. for a Nonsuit or Discontinuance cannot be against some of the Defendants, for the Nonsuit and Discontinuance are of the en­tire action. Therefore here all the Defendants shall have double Costs.

And if the Iury had not meant the Defendants equally free, or equally faulty, they would have added in their Verdict, That if upon the whole matter found, the Court should think that Actio praedicta would lye in London against some of the Defendants, and not others, then they found such against whom it might be laid in London Culpable, and the rest not Culpable.

The Record is, Et praedictus Richardus Coxe Miles, Except. accersivit the Constable, whereas there is no praedictus Richardus Coxe Mi­les, but Baronettus; and there is another praedictus Richardus Coxe Arm [...]ger, which makes the Verdict incertain in this point.

Quaerens nil Capiat, &c.

Pasch. 21 Car. II. in Banc. William Hayes Plaintiff, and Charles Bickerstaff Defen­dant, In Arrest of Judgment.

CHarles Bickerstaff being possessed of a long term of years in certain Woodlands and Copces in Cobham, in the Coun­ty of Kent, Demis'd, Sett, and to Farm lett the same for Six years, parcel of his term to the Plaintiff, under a Rent and other Reser­vations, and Covenanted; The Plaintiff keeping and performing the Agreements of his part to be kept and performed.

Quod praedictus Willielmus Hayes legitime haberet, teneret, & gauderet, & habere, tenere, & gaudere, potuisset praedicta, dimissa, praemissa juxta conventionem praeantea; in & per Indenturam praedict. dimiss. absque aliquo impedimento, perturbatione, evi­ctione, vel interruptione quibuscunque de vel per dictum Carolum Bickerstaff Executores, Administratores, vel Assignatos suos, aut a­liquem eorum prout per Indenturam praedictam plenius appa­ret.

That by virtue of the said Demise he entred, and was pos­ses'd, and that after, the Defendant being possess'd for a longer term, granted the Reversion to Charles Duke of Lenox, to whom the Plaintiff atturn'd; and that afterwards the said Duke, and others by his command, entred upon the Plaintiff, although he observ'd all Agreements of his part, and carried away many Loads of Faggots and Wood, and kept, and still keeps him out of Possession, to his Damage of Eight hundred pounds.

And brings his Action for breach of the Covenant afore­said.

The Defendant pleads Enjoyment according to the Demise, and Traverseth the Grant of the Reversion to the Duke, Modo & Forma.

All Covenants between a Lessor and his Lessee, are either Co­venants in Law, or Express Covenants.

By Covenant in Law, the Lessee is to enjoy his Lease a­gainst the lawful Entry, Eviction, or Interruption of any man, but not against tortious Entries, Evictions, or Interruptions, [Page 119] and the reason of Law is solid and clear, because against torti­ous acts the Lessee hath proper Remedy against the wrong do­ers.

So are the express Books of 22 H. 6. 22 H. 6. f. 52. b. 32 H. 6. f. 32 b. N. Br. [...]45. b. Letter L. where a man leas'd by Deed-poll without express Covenant, and 32 H. 6. where the Lease was by Deed Indented.

If the Lessor seaseth the term by Deed-poll,Nat. Br. and outeth the Lessee, he shall have a Writ of Covenant upon that Deed-poll, although he hath no Indenture of it. But if a stranger, who hath no right, outs the Lessee, then he shall not have a Writ of Covenant against the Lessor, because he hath remedy by Action against the stranger; but if a stranger enter by elder Title, then he shall have a Writ of Covenant, for he hath no other Reme­dy.

This shews the Law gives not Remedy to the Lessee upon the Covenant, when he hath a proper and natural Remedy against another who doth the wrong.

By the same Reason, if the Lessee be by express Covenant to enjoy his term (or enjoy it against all men, which is the same) he shall not have an Action of Covenant against the Lessor, unless he be legally outed or evicted: For if he be outed tortiously by any stranger, he hath his Remedy.

So is the express Book of 26 H. 6. f. 3. b. where it is agreed, That the warranty of a Lease for years, is but an Action of Co­venant, which extends not to tortious Entries for the former Reason.

Yet I agree, If the Lessor expresly Covenants that the Lessee shall hold and enjoy his term without the Entry or Interrup­tion of any, whether such Entry or Interruption be lawful or tortious? There the Lessor shall be charg'd by an Action of Co­venant for the tortious Entry of a stranger, because no other meaning can be given to his Covenant.

Accordingly the new Authorities run grounded upon that sound and ancient Reason of Law, That the Lessor shall not be charg'd with an Action upon his express Covenant for enjoyment of the term against all men, where the Lessee hath his proper Remedy against the wrong doer.

Against this Truth there is one Book that hath, or may be pretended, which I will cite in the first place, because the Answer to it may be more perspicuous from the Authority I shall after deliver to redargue that Case.

Dyer, 15, 16 Eliz. 328. a. pl. 8.It is the Case of Mountford and Catesby in the Lord Dyer. Catesby, in consideration of a Sum of mony and a Horse, made a Lease to Mountford for term of years, Et super se assumpsit, quod the Plaintiff Mountford pacifice, & quiete haberet & gau­deret, the Land demis'd durante termino sine evictione & interrup­tione alicujus personae; after Catesby's Father entred upon him and so interrupted him; whereupon Mountford brought his Acti­on upon this Assumpsit, and Catesby pleaded he did not assume, and found against him. It was moved in Arrest of Judgment for the Defendant, That the entry might be wrongful, for which the Plaintiff had his Remedy, but disallowed, and Iudgment affirmed for the Plaintiff; because, saith the Book, it is an ex­press presumption and assumption, that the Plaintiff should not be interrupted: And this Case is not expresly denied to be Law in Essex and Tisdales Case in the Lord Hobart, as being an ex­press Assumption.

Though the Lord Dyers Case be an Action of the Case upon an Assumpsit, and out Case an Action of Covenant; yet in the nature of the Obligation there seems no difference, but in the form of the Action: For to assume that a man shall enjoy his term quietly, without interruption, and to covenant he shall so enjoy it, seems the same undertaking.

But if the reason of Law differ in an Assumpsit from what it is in a Covenant, as seems implyed in Tisdales Case, then this Case of the Lord Dyer makes nothing against the Case in que­stion, which is upon a Covenant, not an Assumpsit.

Hob. f. 34, 35. 1. Elias Tisdale brought an Action of Covenant against Sir William Essex, and declared, That Sir William convenit, promisit, & agreavit, ad & cum praedict. Elia quod ipse idem Elias haberet, occuparet, & gauderet, certain Lands for Seven years, into which he entred, and that one Elsing had Ejected him, and kept him out ever since. Resolv'd because no Title is laid in Elsing, he shall be taken to enter wrongfully, and the Lessee hath his Remedy against him. Therefore adjudg'd for the Defendant Essex.

Here is a Covenant for enjoying during the term, the same with enjoying without interruption; (for if the enjoyment be interrupted, he doth not enjoy during the term) the same with enjoying without any interruption, the same with enjoying with­out interruption of any person; which is the Lord Dyers Case, but here adjudg'd the interruption must be legal, or an Action of Covenant will not lye, because there is remedy against the Interrupter. So is there in the Lord Dyer's Case.

And a Rule of that Book is, That the Law shall never judge that a man Covenants against the wrongful acts of strangers, unless the words of the Covenant be full, and express to that purpose: which they are not in our present Case, because the Law defends against wrong.

Brocking brought an Action upon an Assumpsit against one Cham, and declared,Brocking versus Cham, Cr. 15 Jac. f. 4. 5. p. 10. That the Defendant assumed the Plaintiff should enjoy certain Lands according to his Lease, without the lett, interruption, or incumbrance of any person; and shews in Fact, That this Land was extended for Debt due to the King by pro­cess out of the Exchequer, and so incumbred. After Verdict for the Plaintiff, it was moved in Arrest of Iudgment, That no good breach was assigned, because he did not shew that the Incumbrance was a lawful Incumbrance, for else he might have his Remedy elsewhere, and Iudgment was given for the Defendant.

This Case was upon an Assumpsit, as the Lord Dyers was, and by as ample words; for the Land was to be enjoyed with­out any lett, which is equivalent to the words of quiete & pa­cifice, in the Lord Dyers Case; which is a Case in terminis, adjudged contrary to that in the Lord Dyer, and upon the same reason of Law in an Assumpsit, as if it had been a Covenant, viz. because the Plaintiff had his Remedy against the wrong doer.

Chauntfloure brought an Action of Covenant against one Prist­ly and Doctor Waterhouse, as Executors of John Mountfitchett, Cr. 45 El. f. 914. pl. 4. and declared, That the Testator had sold him Nine and twenty Tuns of Copras, and agreed, That if the Testator faild of pay­ment of a certain Sum of mony upon a day certain, That the Plaintiff might quietly have and enjoy the said Copras, that the money was not paid at the day, and that he could not have and enjoy the said Nine and twenty Tuns of Copras; Iudgment was given by Nihil dicit against the Defendants, and upon a Writ of Enquiry of Damages, 260 l. Damages given: Vpon motion in Arrest of Iudgment, It was resolved by the whole Court, That the breach of Covenant was not well assign'd, because no lawful disturbance was alledg'd, and if he were illegally hin­dred or disturbed of having the Copras which he had bought, he had sufficient remedy against the wrong doers.

Dod was bound in an Obligation to Hammond, conditioned that Hammond and his Heirs might enjoy certain Copyhold Lands surrendred to him. The Defendant pleaded the Surren­der, and that the Plaintiff entred, and might have enjoyed the Lands: To which the Plaintiff replyed, That after his Entry, [Page 122] one Gay entred upon him, and outed him; It was adjudg'd the Replication was naught, because he did not shew that he was e­victed out of the Land by lawful Title; for else he had his Re­medy against the wrong doer.

This was in an Action of Debt upon a Bond, condition'd for quiet enjoyment: So as neither upon Covenant, upon Assump­sit, or Bond condition'd for quiet enjoying, unless the breach be assign'd for a lawful Entry or Eviction, (and upon the same reason of Law, because the lessee may have his Remedy against the wrong doers) an Action of Covenant cannot be maintain'd.

Cok. 4 Rep. Nokes's Case.To these may be added a Resolution in Nokes his Case in the fourth Report, where a man was bound by Covenant in Law, That his Lessee should enjoy his term, and gave Bond for per­formance of Covenants, in an Action of Debt brought upon the Bond; the breach was assign'd, in that a stranger had recover'd the Land leas'd in an Ejectione firmae, and had Execution, though this Eviction were by course of law, yet for that an elder and sufficient Title was not alledg'd upon which the Recovery was had, it was no breach of the Covenant.

Hill. 22 & 23 Car. II. C. B. Rot. 680. William Shute Plaintiff, John Higden Defendant, In Trespass and Ejectment.

THE Plaintiff declares, That Hugh Ivy Clerk, the Tenth of May, 22 Car. 2. at Wringlington demis'd to the said William, One Messuage, Twenty Acres of Land, Twenty Acres of Meadow, Twenty Acres of Pasture, with the Appurtenances in Wringlington; And also the Rectory and Parish Church of Wringlington, Habendum to the said William and his Assigns, from the Fifth day of May aforesaid, for the term of Five years next ensuing.

By virtue whereof he entred into the said Tenements and Rectory, and was possess'd, until the Defendant the said Tenth day of May, in the said year, entred upon him, and Ejected him, to his Damage of Forty pounds.

The Defendant, by words of course, pleads he is not Culpable, and Issue is joyn'd, and the Verdict was taken by Default of the Defendant, and the Jury find specially.

Upon the Special Verdict, the Case appears to be this,

John Higden the Defendant, was lawfully presented, admitted, instituted, and inducted into the Rectory of Wringlington in the County of Somerset, and Dioces of Bath and Wells, in Februa­ry 1664. being a Benefice with Cure of Souls, and of clear yearly value of Fifty pounds per Annum, and in the King's Books of no more than Five pounds yearly, and that the Pre­misses demis'd were time out of mind, and yet are, parcel of the said Rectory.

That the said John Higden, being lawful Incumbent of the said Church and Rectory of Wringlington, the One and thirtieth of March, 1669. was lawfully presented, admitted, instituted, and inducted into the Rectory of Elme in the said County and Dioces, being a Benefice with Cure of Souls also of clear yearly va­lue, ultra reprisas, of Forty pounds per Annum, and of the va­lue of Ten pounds per Annum in the King's Books, and subscribed [Page 130] the Articles of Religion according to the Act of the Thirteenth of the Queen, 13 El. cap. 12. and was lawful Incumbent of the said Rectory of Elme, but after did not read the Articles of Religion within two Months after his Induction in the Church of Elme, according to the Act of 13 Eliz.

Primo Maii 1669. Hugh Ivy, Lessor of the Plaintiff, was law­fully presented, admitted, instituted, and inducted into the Re­ctory of Wringlington, as suppos'd void, and performed all things requisite for a lawful Incumbent of the said Rectory to perform, both by subscribing and reading the Articles of Religion, accord­ing to the Statute of 13 Eliz.

And that he entred into the said Rectory and Premisses, and made the Lease to the Plaintiff, as in the Declaration.

That the said Higden the Defendant, did enter upon the Plain­tiff the said Tenth of May, 1669. as by Declaration.

The Questions spoken to at the Barr, in this Case, have been two.

1. Whether the Rectory of Wringlington, being a Benefice with Cure, and of clear yearly value of Fifty pounds, and but of Five pounds in the King's Books, shall be estimated according to Fifty pounds per Annum, to make an Avoidance within the Statute of 21 H. 8. by the Incumbents accepting another Bene­fice with Cure?

But that is no Question within this Case; for be it of value or under value, the Case will be the same.

2. Whether not reading the Articles according to the Statute of 13 Eliz. within two Months after induction into the Church of Elme, shall exclude Higden not only from the Rectory of Elme, but from the Rectory of Wringlington? which is no point of this Case: For whether he read or not read the Articles in the Church of Elme, he is excluded from any right to the Church of Wringlington.

For this Case depends not at all upon any Interpretation of the Statute of 21 H. 8. of Pluralities; but the Case is singly this,

Higden being actual and lawful Incumbent of Wringlington, a Benefice with Cure, be it under the value of Eight pounds yearly, or of the value, or more, accepts another Benefice with Cure (the Rectory of Elme) and is admitted, instituted, and inducted lawfully to it, be it of the value of Eight pounds or more, or under.

The Patron of Wringlington within one month after admission institution, and induction of Higden, the Incumbent of Wring­lington to the Rectory of Elme, presents Hugh Ivy, the Plain­tiffs Lessor to Wringlington, who is admitted, instituted, and inducted thereto the same day, and after, as by the Declarati­on, enters and makes a Lease to the Plaintiff, who is Ejected by the Defendant Higden.

The Doubt made by the Iury, is, if Higdens Entry be law­ful.

It hath been resolv'd in Holland's Case, and likewise in Dig­by's Case, in the Fourth Report, and often before, since the Council of Lateran, Anno Dom. 1215.Under Pope Innocent 3. Digby's Case. Vid. Bon. C. pur Plurali­ties. Ander­son 1. part. f. 200. b.p. 236 Vid. Moore's Rep. a large Case to the same effect, viz. Hol­land & Dig­by's Case. That if a man have a Benefice with Cure, whatever the value be, and is admitted and instituted into another Benefice with Cure, of what value soever, having no qualification or dispensation, the first Benefice is ipso facto, so void, that the Patron may present another to it if he will.

But if the Patron will not present, then if under the value, no lapse shall incurr until deprivation of the first Benefice, and notice; but if of the value of Eight pounds, or above, the Pa­tron, at his peril, must present within Six months, by 21 H. 8.

As to the Second Question, Whether the Defendants, not reading the Articles in the Church of Elme, within two months after his induction there, have excluded him not only from being Incumbent of Elme, but also from Wringlington? The Answer is,

First, His not reading the Articles in the Church of Elme, according to the Statute of 13. is neither any cause of, nor doth contribute to his not being still Incumbent of Wringlington; though, as his Case is, he hath no right to the Rectory of Wringlington, since the admission, institution, and induction of Hugh Ivy, the Plaintiffs Lessor, into it, as hath already ap­pear'd.

Secondly, As for the Rectory of Elme, although it doth not appear that the Patron of Elme hath presented, as he might have done, or perhaps hath, any other Clerk; or that any other is admitted and instituted into that Church, yet Mr. Higden can be no Incumbent there, nor can sue for Tithes, nor a­ny other Duty; because, by not reading the Articles, he stands depriv'd ipso facto.

For clearing this, certain Clauses of the Act of 13 Eliz. are to be open'd.

The first is;

Every person, after the end of this Session of Parliament, to be admitted to a Benefice with Cure, except that within two Months after his induction, he publickly read the said Articles in the same Church whereof he shall have Cure, in the time of Common-prayer there, with Declaration of his unfeigned assent thereto, &c. shall be upon every such Default, ipso facto, immediately depriv'd.

There follows, relative to this Clause,

Provided always, That no Title to conferr or present by lapse, shall accrue upon any deprivation, ipso facto, but after six Months af­ter notice of such deprivation given by the Ordinary to the Pa­tron.

By these Clauses immediately upon not reading the Articles, according to the Statute, the Incumbent is depriv'd ipso facto.

And the Patron may presently, upon such Deprivation, present if he will, and his Clerk ought to be admitted and instituted, but if he do not, no lapse incurrs until after six months after notice of the Deprivation given to the Patron by the Ordinary, who is to supply the Cure until the Patron present.

Another Clause of the Statute is, No person shall hereafter be admitted to any Benefice with Cure, except he then be of the Age of Three and twenty years at the least, and a Deacon, and shall first have subscribed the said Articles in the presence of the Ordinary, &c.

And relative to this Clause there is a third, That all Admis­sions to Benefices, Institutions, and Inductions of any person, con­trary to any provision of this Act, shall be utterly void in Law, as if they never were.

Now though the Church of Wringlington became void im­mediately, of what value soever it were, by admission and insti­tution of the Defendant into the Church of Elme, by the ancient Canon Law receiv'd in this Kingdom, which is the Law of the Kingdom in such Cases, if the Patron pleas'd to present.

And for that the Patron accordingly did within a month after the Defendants Admission and Institution into the Rectory of Elme, present his Clerk, Hugh Ivy, to the Church of Wring­lington, who was thereto Admitted, Instituted, and Inducted within that time, which was a month before the Defendant was depriv'd for not reading the Articles in the Church of Elme.

Whereby any Interest the Defendant had to Wringlington, was wholly avoided, as the Case is.

Yet if the Church of Wringlington had been under value, and the Patron had not presented to it his Clerk before Higden's De­privation of the Church of Elme, he might not have still conti­nued Parson of Wringlington, as if never Admitted, Instituted, or Inducted to the Rectory of Elme.

But if he had not subscribed the Articles before the Ordinary, upon his Admission and Institution to the Rectory of Elme, he had never been Incumbent of Elme, and consequently never accepted a second Benefice to disable him of holding the first.

And so it is resolv'd in the last Case of the Lord Dyer, 23 of the Queen, where a man having a Living with Cure under va­lue, accepted another under value also, having no Qualification or Dispensation, and was Admitted, Instituted, and Inducted into the Second, but never subscribed the Articles before the Or­dinary, as the Statute of 13. requires. Vpon question, whether the first Living, vacavit per mortem, of him, or not? the Court resolv'd, That the first Living became vacant by his death, and not by accepting the second, because he was never Incumbent of the second, for not subscribing the Articles before the Ordinary, whereby his Admission, Institution, and Induction into the se­cond Living became void, as if they had never been.

This Case was urg'd at the Barr for the Defendant, as if his not reading the Articles within two months after his Induction into Elme, had still (as in the Lord Dyers Case) left him Incum­bent of the first Living.

But that was mistaken; for not subscribing the Articles, made that he never was Incumbent of the second Living, and conse­quently then there was no cause to lose the first.

But the Defendant having subscribed the Articles upon his Ad­mission and Institution, was perfect Incumbent, pro tempore, of the second Living, and thereby lost the first, and afterwards lost the second, for not reading the Articles within two months after his Induction, so as he was compleat Incumbent by Admission, Institution, and Induction of the second Living, full two months before he lost it.

It was upon this Clause of the Statute smartly urg'd by my Brother Baldwyn, That if the Statute makes the Defendants Ad­mission, Institution, and Induction to the second Living, void, as if they had never been; For what reason doth he not still re­tain his first? The Answer is as before.

[Page 134] 1. That his not retaining the first, is no effect nor consequent of his losing the second.

But the first was lost because he accepted a second, and the right Patron thereupon presented to the first; so as he lost the first, whilst he was, and for being, lawful Incumbent of the second: And therefore could be no effect nor consequent at all proceeding from his loss of the second, by not reading the Articles after, more than if he had lost the second by Deprivation for Heresie, or other cause.

2. The Clause of 13. is not, That all Admissions, Instituti­ons, and Inductions to Benefices, where any person is depriv'd by virtue of that Act, shall be void as if they never were; for so should the Clause have been to warrant the Objection made at the Barr.

But the Clause is, That all Admissions, Institutions, and Indu­ctions made contrary to any provision of the Act, shall be void, as if they never were.

But Higden's Admission, Institution, and Induction to the Church of Elme, was not contrary to any provision of the Act, but every way legal; but had he not subscribed the Articles before the Ordinary, then his Admission, Institution, and Induction had been contrary to the provision of the Act, and so void, as if they never were.

The Chief Justice delivered the Opinion of the Court, and Judgment was given for the Plaintiff.

Bushell's Case.

THE King's Writ of Habeas Corpus, Dat. 9 die Novembris, 22 Car. 2. issued out of this Court, directed to the then Sheriffs of London, to have the Body of Edward Bushell, by them detained in Prison, together with the day and cause of his Caption and Detention, on Friday then next following, before this Court, to do and receive as the Court should consider; as also to have then the said Writ in Court.

Of which Writ, Patient Ward and Dannet Foorth, then Sheriffs of London, made the Retorn following, an­nex'd to the said Writ.

That at the Kings Court of a Session of Oyer and Terminer, held for the City of London, at Justice Hall in the Old Baily, London, in the Parish of St. Sepulchres in Farringdon Ward without London, on Wednesday 31 die August. 22 Car. 2. before Sir Samuel Sterling then Mayor of London, and divers other his Majesties Justices, by virtue of his Majesties Letters Patents, under the Great Seal of England, to them, any four or more of them, directed to enquire, hear, and determine, according to the tenor of the said Letters Patents, the Offences therein specified: And amongst others, the Offences of unlawful Congregating and Assemblies, within the li­mits appointed by the said Commission within the said City, as well within Liberties as without. Edward Bushel, the Prisoner at the Barr, was committed to the Goal of Newgate, to be there safely kept, under the Custody of John Smith Knight, and James Ed­wards, then Sheriffs of the said City, by virtue of a certain Or­der, then, and there made by the said Court of Sessions, as follow­eth:

The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his Liberty, if he have been against Law deprived of it.

Therefore the Writ commands the Day, and the cause of the Caption and Detaining of the Prisoner to be certified upon the Retorn, which if not done, the Court cannot possibly judge whether the cause of the Commitment and Detainer be according to Law, or against it.

Therefore the cause of the Imprisonment ought, by the Re­torn, to appear as specifically and certainly to the Iudges of the Retorn, as it did appear to the Court or Person authorized to commit; else the Retorn is insufficient, and the consequence must be,

That either the Prisoner, because the cause retorn'd of his Imprisonment is too general, must be discharg'd; when as if the cause had been more particularly retorn'd, he ought to have been remanded; or else he must be remanded, when if the cause had been particularly retorn'd, he ought to have been discharg'd: Both which are Inconveniences not agreeing with the dignity of the Law. (There is a specious Exception to this Rule, but doth not materially vary it, as shall appear.)

In the present Case it is retorn'd, That the Prisoner, being a Jury-man, among others charg'd at the Sessions Court of the Old Baily, to try the Issue between the King, and Penn, and Mead, upon an Indictment, for assembling unlawfully and tumultuous­ly, did contra plenam & manifestam evidentiam, openly given in Court, acquit the Prisoners indicted, in contempt of the King, &c.

The Court hath no knowledge by this retorn, whether the Evidence given were full and manifest, or doubtful, lame, and dark, or indeed Evidence at all material to the Issue, be­cause it is not retorn'd what Evidence in particular, and as it was deliver'd, was given. For it is not possible to judge of that rightly, which is not expos'd to a mans Iudgment. But here the Evidence given to the Iury is not exposed at all to this Court, but the Iudgment of the Court of Sessions upon that E­vidence is only expos'd to us; who tell us it was full and ma­nifest. But our Iudgment ought to be grounded upon our own inferences and understandings, and not upon theirs.

It was said by a Learned Judge, If the Jury might be fined for finding against manifest Evidence, the retorn was good, though it did not express what the Evidence particularly was, whereby the Court might Judge of it, because retorning all the Evidence would be too long. A strange Reason: For if the Law allow me re­medy for wrong Imprisonment, and that must be by judging whether the cause of it were good, or not, to say the cause is [Page 138] too long to be made known, is to say the Law gives a remedy which it will not let me have, or I must be wrongfully impri­son'd still, because it is too long to know that I ought to be freed? What is necessary to an end, the Law allows is never too long. Non sunt longa quibus nihil est quod demere possis, is as true as any Axiom in Euclid. Besides, one manifest Evidence retorn'd had suffic'd, without retorning all the Evidence. But the other Judges were not of his mind.

If the retorn had been, That the Jurors were committed by an Order of the Court of Sessions, because they did, minus juste, acquit the persons indicted.

Or because they did, contra legem, acquit the persons indi­cted.

Or because they did, contra Sacramentum suum, acquit them.

The Iudges cannot upon the present more judge of the le­gal cause of their commitment, than they could if any of these causes, as general as they are, had been retorn'd for the cause of their commitment. And the same Argument may be exactly made to justifie any of these retorns, had they been made as to justifie the present retorn, they being equally as legal, equally as certain, and equally as far from possessing the Court with the truth of the cause: and in what condition should all men be for the just Liberty of their persons, if such causes should be ad­mitted sufficient causes to remand persons to prison.

To those Objections made by the Prisoners Council against the Retorn, as too general.

1. It hath been said, That Institutum est quod non inquiratur de discretione Judicis.

2. That the Court of Sessions in London, is not to be look'd on as an inferiour Court, having all the Judges Commissioners. that the Court having heard the Evidence, it must be credited, that the Evidence given to the Iury of the Fact was clear, and not to be doubted.

As for any such Institution pretended, I know no such, nor believe any such, as it was applyed to the present cause; but taking it in another, and in the true sense, I admit it for truth: that is, when the King hath constituted any man a Iudge under him, his ability, parts, fitness for his place, are not to be re­flected on, censured, defamed, or vilified by any other person, being allowed and stampt with the Kings Approbation, to [Page 139] whom only it belongs to judge of the fitness of his Mini­sters.

And such scandalous Assertions or Inquiries upon the Judges of both Benches, is forbidden by the Statute of Scandalum Magnatum, 2 R. 2. c. 5. Nor must we, upon supposition only,2 R. 2. c. 5. either ad­mit Judges deficient in their Office, for so they should never do any thing right; nor on the other side, must we admit them un­erring in their places, for so they should never do any thing wrong.

And in that sense the saying concerns not the present Case.

But if any man thinks that a person concern'd in Interest, by the Iudgment, Action, or Authority exercis'd upon his per­son or fortunes by a Judge, must submit in all, or any of these, to the implyed discretion and unerringness of his Judge, without seeking such redress as the Law allows him, it is a perswasion against common Reason, the received Law, and usage both of this Kingdome, and almost all others.

If a Court, Inferiour or Superiour, hath given a false or erroneous Iudgment, is any thing more frequent than to re­verse such Iudgments by Writs of False Judgment, of Error, or Appeals, according to the course of the Kingdome.

If they have given corrupt and dishonest Iudgments, they have in all Ages been complained of to the King in the Starr-Chamber, or to the Parliament.

Andrew Horne, in his Mirror of Justices, Hornes Mir­ror, f. 296. mentions many Judges punisht by King Alfred before the Conquest, for corrupt Iudgments, and their particular Names and Offences, which could not be had but from the Records of those times.

Our Stories mention many punisht in the time of Edward the First, our Parliament Rolls of Edward the Third's time, of Ri­chard the Second's Time, for the pernicious Resolutions given at Nottingham Castle, afford Examples of this kind: In latter times, the Parliament Journals of 18 and 21 Jac. the Iudgment of the Ship-mony in the time of Charles the First, question'd, and the particular Judges impeacht. These Instances are obvious, and therefore I but mention them.

In cases of retorns too general upon Writs of Habeas Cor­pus, of many I could urge, I will instance in two only.

One Astwick brought by Habeas Corpus to the Kings Bench, 9 El. Moore, f. 837. was retorn'd to be committed, per Mandatum Nicholai Bacon Militis, domini Custodis magni Sigilli Angliae virtute cujusdam Contemptus in Curia Cancellar. facti, and was presently bail'd.

13 Jac. Moore f. 839.One Apsley, Prisoner in the Fleet, upon a Habeas Corpus, was retorn'd to be committed, per considerationem Curiae Can­cellar. pro contemptu eidem Curiae illato, and upon this retorn set at liberty.

In both these Cases, no inquiry was made, or consideration had, whether the Contempts were to the Law Court, or equita­ble Court of Chancery, either was alike to the Judges, lest any man should think a difference might arise thence.

The reason of discharging the Prisoners upon those retorns, was the generality of them being for Contempts to the Court, but no particular of the Contempt exprest, whereby the Kings Bench could judge, whether it were a cause for commitment or not.

And was it not as supposeable, and as much to be credited, That the Lord Keeper and Court of Chancery, did well under­stand what was a Contempt deserving commitment, as it is now to be credited, that the Court of Sessions did understand perfectly what was full and manifest Evidence against the per­sons indicted at the Sessions, and therefore it needed not to be re­veal'd to us upon the retorn?

Hence it is apparent, That the Commitment and Retorn pursuing it, being in it self too general and uncertain, we ought not implicitly to think the Commitment was re vera, for cause particular and sufficient enough, because it was the Act of the Court of Sessions.

And as to the other part, That the Court of Sessions in Lon­don is not to be resembled to other inferiour Courts of Oyer and Terminer, because all the Judges are commission'd here (which is true) but few are there, at the same time, and as I have heard, when this Tryal was, none of them were present. How­ever persons of great quality are in the Commissions of Oyer and Terminer, through the Shires of the Kingdom, and always some of the Judges; nor doth one Commission of Oyer and Terminer differ in its Essence, Nature, and Power from ano­ther, if they be general Commissions; but all differ in the Ac­cidents of the Commissioners, which makes no alteration in their actings in the eye of Law.

Another fault in the retorn is, That the Jurors are not said to have acquitted the persons indicted, against full and manifest Evidence corruptly, and knowing the said Evidence to be full and manifest against the persons indicted, for how manifest soever the Evidence was, if it were not manifest to them, and that they believ'd it such, it was not a finable fault, nor deserving [Page 141] imprisonment, upon which difference the Law of punishing Ju­rors for false Verdicts principally depends.

A passage in Bracton is remarkable to this purpose concern­ing Attainting Inquests.

Committit Jurator perjurium propter falsum Sacramentum, Bracton, l. 4. c. 4. f. 288. b. ut si ex certa scientia aliter Juraverit quam res in veritate se habuerit, si autem Sacramentum fatuum fuerit licet falsum, tamen non com­mittit perjurium licet re vera res aliter se habeat quam juraverat, & quia jurat secundum conscientiam eo quod non vadit contra men­tem. Sunt quidam qui verum dicunt. mentiendo, sed se pejerant— quia contra mentem vadunt.

The same words▪ and upon the same occasion,Fleta, l. 5. c. 22 f. 336. n. 9. are in effect in Fleta. Committit enim Jurator perjurium quandoque prop­ter falsum Sacramentum, ut si ex certa scientia aliter juraverit quam res in veritate se habuerit secus enim propter factum quam­vis falsum; and lest any should think that these passages are to be understood only of Jury-mens perjuries in foro conscientiae, it is clearly otherwise by both those Books, which shew how, by the discreet Examination of the Judge, the Error of the Jury not wilfull, may be prevented and corrected, and their Verdict rectified.

And in another place of Bracton, in the same Chapter: Judex enim sive Justiciarius ad quem pertinet examinatio, si minus diligen­ter examinaverit, occasionem prebet perjurii Juratoribus. And af­ter,

Et si examinati cum justo deducantur errore dictum suum emenda­verint, hoc b [...]ne facere possunt, ante judicium & impune, Bract. l. 4. f. 289. a. sed post judicium non sine poenâ.

After these Authorities,

I would know whether any thing be more common, than for two men Students, Barristers, or Iudges, to deduce con­trary and opposite Conclusions out of the same Case in Law? And is there any difference that two men should inferr distinct conclusions from the same Testimony? Is any thing more known than that the same Author, and place in that Author, is forcibly urg'd to maintain contrary conclusions, and the decision hard, which is in the right? Is any thing more fre­quent in the controversies of Religion, than to press the same Text for opposite Tenents? How then comes it to pass that two persons may not apprehend with reason and honesty, what a witness, or many, say, to prove in the understanding of one plainly one thing, but in the apprehension of the other, clearly [Page 142] the contrary thing? Must therefore one of these merit Fine and Imprisonment, because he doth that which he cannot otherwise do, preserving his Oath and Integrity? And this often is the Case of the Judge and Jury.

Of this mind were Ten Judges of E­leven, the Chief Baron Turnor gave no Opinion, because not at the Argu­ments.I conclude therefore, That this Retorn, charging the Prisoners to have acquitted Penn and Mead, against full and manifest Evidence first and next, without saying that they did know and believe that Evidence to be full and mani­fest against the indicted persons, is no cause of Fine or Im­prisonment.

And by the way I must here note, That the Verdict of a Jury, and Evidence of a Witness are very different things, in the truth and falshood of them: A Witness swears but to what he hath heard or seen, generally or more largely, to what hath fallen under his senses. But a Jury-man swears to what he can inferr and conclude from the Testimony of such Witnesses, by the act and force of his Vnderstanding, to be the Fact in­quired after, which differs nothing in the Reason, though much in the punishment, from what a Judge, out of various Cases consider'd by him, inferrs to be the Law in the Question before him. Therefore Bracton,

Bract. f. 289. a. Et licet narratio facti contraria sit Sacramento, & dicto praeceden­ti, tamen falsum non faciunt Sacramentum licet faciunt fatuum Judici­um, quia loquuntur secundum conscientiam quia falli possunt in Judiciis suis, sicut ipse Justitiarius.

There is one Objection which hath been made by none, as I remember, to justifie this general Retorn, I would give An­swer to.

A man committed for Treason or Felony, and bringing a Habeas Corpus, hath retorn'd upon it, That he was committed for High Treason or Felony; and this is a sufficient Retorn to remand him, though in truth this is a general Retorn: For if the specifical Fact for which the party was committed, were expressed in the Warrant, it might then perhaps appear to be no Treason or Felony, but a Trespass, as in the Case of the Earl of Northumberland, 5 H. 4. question'd for Treason in raising power. The Lords adjudg'd it a Trespass; for the Powers raised were not against the King, but some Subjects.

Why then by like Reason may not this Retorn be sufficient, though the Fact for which the Prisoners stood committed parti­cularly express'd, might be no cause of Commitment?

Answ. The Cases are not alike; for upon a general Commitment for Treason or Felony, the Prisoner (the cause appearing) may press for his Tryal, which ought not to be denied or delayed, and upon his Indictment and Tryal, the particular cause of his Imprisonment must appear, which proving no Treason or Fe­lony, the Prisoner shall have the benefit of it. But in this Case, though the Evidence given were no full nor manifest E­vidence against the persons indicted, but such as the Jury upon it ought to have acquitted those indicted, the Prisoner shall ne­ver have any benefit of it, but must continue in Prison, when remanded, until he hath paid that Fine unjustly impos'd on him, which was the whole end of his Imprisonment.

We come now to the next part of the Retorn, viz. That the Jury acquitted those indicted against the direction of the Court in matter of Law, openly given and declared to them in Court.

1. The words, That the Jury did acquit, against the direction of the Court, in matter of Law, literally taken, and de plano, are insignificant, and not intelligible; for no Issue can be joyn'd of matter in Law, no Jury can be charg'd with the tryal of mat­ter in Law barely, no Evidence ever was, or can be given to a Jury of what is Law, or not; nor no such Oath can be given to, or taken by, a Jury, to try matter in Law; nor no Attaint can lye for such a false Oath.

Therefore we must take off this vail and colour of words, which make a shew of being something, and in truth are nothing.

If the meaning of these words, finding against the direction of the Court in matter of Law, be, That if the Judge having heard the Evidence given in Court (for he knows no other) shall tell the Jury, upon this Evidence, the Law is for the Plaintiff, or for the Defendant, and you are under the pain of Fine and Impri­sonment to find accordingly, then the Jury ought of duty so to do; Every man sees that the Jury is but a troublesome delay, great charge, and of no use in determining right and wrong, and therefore the Tryals by them may be better abolish'd than con­tinued; which were a strange new-found conclusion, after a try­al so celebrated for many hundreds of years.

For if the Judge, from the Evidence, shall by his own Iudg­ment first resolve upon any Tryal what the Fact is, and so knowing the Fact, shall then resolve what the Law is, and or­der the Jury penally to find accordingly, what either necessary or convenient use can be fancied of Juries, or to continue Tryals by them at all?

But if the Iury be not oblig'd in all Tryals to follow such Directions, if given, but only in some sort of Tryals (As for instance, in Tryals for Criminal matters upon Indictments or Appeals) why then the consequence will be, though not in all, yet in Criminal Tryals, the Iury (as of no material use) ought to be either omitted or abolished, which were the greater mis­chief to the people, than to abolish them in Civil Tryals.

And how the Iury should, in any other manner, according to the course of Tryals us'd, find against the direction of the Court in matter of Law, is really not conceptible.

True it is, if it fall out upon some special Tryal, that the Iury being ready to give their Verdict, and before it is given, the Iudge shall ask, whether they find such a particular thing propounded by him? or whether they find the matter of Fact to be as such a Witness, or Witnesses have depos'd? and the Iury answer, they find the matter of Fact to be so; if then the Iudge shall declare, The matter of Fact being by you so found to be, the Law is for the Plaintiff, and you are to find according­ly for him.

If notwithstanding they find for the Defendant, this may be thought a finding in matter of Law against the direction of the Court; for in that case the Iury first declare the Fact, as it is found by themselves, to which Fact the Iudge declares how the Law is consequent.

And this is ordinary, when the Iury find unexpectedly for the Plaintiff or Defendant, the Iudge will ask, How do you find such a Fact in particular? and upon their answer he will say, then it is for the Defendant, though they found for the Plaintiff, or è con­trario, and thereupon they rectifie their Verdict.

And in these Cases the Iury, and not the Iudge, resolve and find what the Fact is.

Therefore alwaies in discreet and lawful assistance of the Iury, the Iudge his direction is Hypothetical, and upon suppo­sition, and not positive, and upon coercion. viz. If you find the Fact thus (leaving it to them what to find) then you are to find for the Plaintiff; but if you find the Fact thus, then it is for the Defendant.

But in the Case propounded by me, where it is possible in that special manner, the Iury may find against the Direction of the Court in matter of Law, it will not follow they are therefore finable; for if an Attaint will lye upon the Verdict so given by them, they ought not to be fined and imprisoned by the Judge for that Verdict; for all the Iudges have agreed upon a [Page 145] full conference at Serjeants Inn, in this case. And it was for­merly so agreed by the then Judges in a Case where Justice Hide had fined a Jury at Oxford, for finding against their Evidence in a Civil Cause. That a Jury is not finable for going against their Evidence, where an Attaint lies; for if an Attaint be brought up­on that Verdict, it may be affirmed and found upon the Attaint a true Verdict, and the same Verdict cannot be a false Verdict, and therefore the Jury fined for it as such by the Judge, and yet no false Verdict, because affirmed upon the Attaint.

Another Reason that the Jury may not be fined in such case, is, because until a Jury have consummated their Verdict, which is not done until they find for the Plaintiff or Defendant, and that also be entred of Record; they have time still of deli­beration, and whatsoever they have answered the Judge upon an interlocutory Question or Discourse, they may lawfully vary from it if they find cause, and are not thereby concluded.

Whence it follows upon this last Reason, That upon Try­als wherein no Attaint lies, as well as upon such where it doth, no case can be invented; wherein it can be maintained that a Jury can find, in matter of Law, nakedly against the direction of the Judge.

And the Judges were (as before) all of Opinion, That the Retorn in this latter part of it, is also insufficient, as in the for­mer, and so wholly insufficient.

But that this Question may not hereafter revive if possible, It is evident by several Resolutions of all the Judges, That where an Attaint lies, the Judge cannot fine the Jury for going against their Evidence or Direction of the Court, without o­ther Misdemeanour.

For in such case, finding against, or following the direction of the Court barely, will not barr an Attaint, but in some case the Judge being demanded by, and declaring to, the Jury, what is the Law, though he declares it erroneously, Ingersalls C. Cr. 35 El. f. 309. n. 18. and they find ac­cordingly, this may excuse the Jury from the Forfeitures; for though their Verdict be false, yet it is not corrupt, but the Iudgment is to be revers'd however upon the Attaint; for a man loseth not his right by the Judges mistake in the Law.

Therefore if an Attaint lies for a false Verdict upon Indict­ment not Capital (as this is) either by the Common or Statute Law, by those Resolutions, the Court would not fine the Ju­ry in this case, for going against Evidence, because an Attaint lay.

But admitting an Attaint did not lye (as I think the Law clear it did not) for there is no Case in all the Law of such an Attaint, nor Opinion, but that of Thirnings 10 H. 4. Attaint 60. & 64. for which there is no warrant in Law, though there be other specious Authority against it, toucht by none that ar­gued this Case.

The Question then will be, Whether before the several Acts of Parliament, which granted Attaints, and are enumerated in their order in the Register, Reg. f. 122. a. the Judge by the Common Law, in all Cases, might have fined the Jury, finding against their E­vidence and direction of the Court, where no Attaint did lye, or could so do, yet if the Statutes which gave the Attaints were re­peal'd.

If he could not in Civil Causes before Attaints granted in them, he could not in Criminal Causes, upon Indictment (wherein I have admitted Attaint lies not) for the fault in both was the same, viz. finding against Evidence and Direction of the Court, and by the Common Law; the Reason being the same in both, the Law is the same.

That the Court could not Fine a Jury at the Common Law, where Attaint did not lye (for where it did, is agreed he could not) I think to be the clearest position that ever I consider'd, ei­ther for Authority or Reason of Law.

After Attaints were granted by Statutes generally; As by Westminster the First, c. 38. in Pleas Real, and by 34 E. 3. c. 7. in Pleas Personal, and where they did lye at Common Law (which was only in Writs of Assise) The Examples are frequent in our Books of punishing Jurors by Attaint.

But no Case can be offer'd, either before Attaints granted in general, or after, That ever a Jury was punish't by Fin [...] and Imprisonment by the Judge, for not finding according to their Evidence, and his Directtion, until Popham's time, nor is there clear proof that he ever fined them for that Reason, separated from other Misdemeanor. If Juries might be fined in such Case before Attaints granted, why not since? for no Statute hath taken that power from the Judge. But since Attaints gran­ted, the Judges resolved they cannot Fine where the Attaint lies, therefore they could not Fine before. Sure this latter Age did not first discover that the Verdicts of Juries were many times not according to the Judges opinion and liking.

But the Reasons are, I conceive, most clear, That the Judge could not, nor can Fine and Imprison the Jury in such Ca­ses.

Without a Fact agreed, it is as impossible for a Judge; or any other, to know the Law relating to that Fact, or direct concerning it, as to know an Accident that hath no Sub­ject.

Hence it follows; That the Judge can never direct what the Law is in any matter controverted, without first knowing the Fact; and then it follows, That without his previous know­ledge of the Fact, the Jury cannot go against his Direction in Law, for he could not direct.

But the Judge, quà Judge, cannot know the Fact possibly, but from the Evidence which the Jury have, but (as will ap­pear) he can never know what Evidence the Jury have, and consequently he cannot know the matter of Fact, nor punish the Jury for going against their Evidence, when he cannot know what their Evidence is.

It is true, if the Jury were to have no other Evidence for the Fact, but what is depos'd in Court, the Judge might know their Evidence, and the Fact from it, equally as they, and so direct what the Law were in the Case, though even then the Judge and Jury might honestly differ in the result from the Evi­dence, as well as two Judges may, which often happens.

But the Evidence which the Jury have of the Fact is much o­ther than that; For,

1. Being return'd of the Vicinage, whence the cause of Action ariseth, the Law supposeth them thence to have suf­ficient knowledge to try the matter in Issue (and so they must) though no Evidence were given on either side in Court, but to this Evidence the Judge is a stranger.

2. They may have Evidence from their own personal knowledge, by which they may be assur'd, and sometimes are, that what is depos'd in Court, is absolutely false; but to this the Judge is a stranger, and he knows no more of the Fact than he hath learn'd in Court, and perhaps by false Depositions, and consequently knows nothing.

3 The Jury may know the Witnesses to be stigmatiz'd and infamous, which may be unknown to the parties, and con­sequently to the Court.

4. In many Cases the Jury are to have View necessarily, in many, by consent, for their better information; to this Evi­dence likewise the Judge is a stranger.

[Page 148]5. If they do follow his direction, they may be attainted, and the Iudgment revers'd for doing that, which if they had not done, they should have been fined and imprisoned by the Judge, which is unreasonable.

6. If they do not follow his direction, and be therefore fined, yet they may be attainted, and so doubly punisht by distinct Iudicatures for the same offence, which the Common Law admits not.

Chevin and Paramours Case, 3 El. Dyer 201. a. n. 63.A Fine revers'd in Banco Regis for Infancy, per inspectionem & per testimonium del. 4. fide dignorum. After upon Exami­nation of divers Witnesses in Chancery, the suppos'd Infant was prov'd to be of Age, tempore finis levati, which Testimo­nies were exemplified, and given in Evidence after in Com­muni Banco, in a Writ of Entry in the quibus there brought. And though it was the Opinion of the Court, That those Testi­monies were of no force against the Iudgment in the Kings Bench, The Progress in this Writ of Right till Judgment for Paramour the Defendant, is at large 13 El. Dyer f. 301. n. 40. yet the Jury found, with the Testimony in Chancery, a­gainst direction of the Court, upon a point in Law, and their Verdict after affirmed in an Attaint brought, and after a Writ of Right was brought, and battle joyn'd.

7. To what end is the Jury to be retorn'd out of the Vi­cinage, whence the cause of Action ariseth? To what end must Hundredors be of the Jury, whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in general? To what end are they challeng'd so scrupulously to the Array and Pole? To what end must they have such a cer­tain Free-hold, and be probi & legales homines, and not of af­finity with the parties concern'd? To what end must they have in many Cases the view, for their exacter information chiefly? To what end must they undergo the heavy punishment of the villanous Iudgment, if after all this they implicitly must give a Verdict by the dictates and authority of another man, under pain of Fines and Imprisonment, when sworn to do it accord­ing to the best of their own knowledge:

A man cannot see by anothers Eye, nor hear by ano­thers Ear, no more can a man conclude or inferr the thing to be resolv'd by anothers Vnderstanding or Reasoning; and though the Verdict be right the Jury give, yet they be­ing not assur'd it is so from their own Vnderstanding, are forsworn, at least in foro conscientiae.

[Page 149]9. It is absurd a Jury should be fined by the Judge for going against their Evidence, when he who fineth knows not what it is, as where a Jury find without Evidence in Court of either side, so if the Iury find,14 H. 7. f. 29. per Vavasor in Camer. Scace. without contradiction Hob. f. 227. upon their own know­ledge, as the course is if the Defendant plead Solvit ad diem, to a Bond prov'd, and offers no proof. The Jury is directed to find for the Plaintiff, unless they know pay­ment was made of their own knowledge, according to the Plea.

And it is as absurd to fine a Jury for finding against their Evidence, when the Judge knows but part of it; for the better and greater part of the Evidence may be wholly un­known to him; and this may happen in most Cases, and often doth, as in Graves and Shorts Case.

Error of a Iudgment in the Common Bench, Graves vers. Short, 40 El. Cro. f. 616. the Error as­sign'd was, The Issue being, whether a Feoffment were made? and the Jurors being gone together to conferr of their Ver­dict, one of them shew'd to the rest an Escrow pro petentibus, not given in Evidence by the parties per quod, they found for the Demandant upon Demurrer adjudg'd no Error; for it appears not to be given him by any of the parties, or any for them, it must be intended he had it as a piece of Evi­dence about him before, and shew'd it to inform himself and his Fellows, and as he might declare it as a witness, that he knew it to be true. They resolv'd, If that might have a­voided the Verdict, which they agreed it could not, yet it ought to have been done by Examination, and not by Error.

That Decantatum in our Books, Ad quaestionem facti non re­spondent Judices, ad quaestionem legis non respondent Juratores, literally taken is true: For if it be demanded, What is the Fact? the Judge cannot answer it: if it be asked, What is the Law in the Case, the Jury cannot answer it.

Therefore the parties agree the Fact by their pleading up­on Demurrer, and ask the Iudgment of the Court for the Law.

In Special Verdicts the Jury Inform the naked Fact, and the Court deliver the Law; and so is it in Demurrers upon E­vidence, in Arrest of Judgments upon Challenges, and often up­on the Judges Opinion of the Evidence given in Court, the Plaintiff becomes Nonsuit, when if the matter had been left to the Jury, they might well have found for the Plaintiff.

But upon all general Issues; as upon not Culpable pleaded in Trespass, Nil debet in Debt, Nul tort, Nul disseisin in Assize, Ne disturba pas in Quare Impedit, and the like; though it be matter of Law whether the Defendant be a Trespassor, a Deb­tor, Disseisor, or Disturber in the particular Cases in Issue; yet the Jury find not (as in a Special Verdict) the Fact of every Case by it self, leaving the Law to the Court, but find for the Plaintiff or Defendant upon the Issue to be tryed, wherein they resolve both Law and Fact complicately, and not the Fact by it self; so as though they answer not singly to the Question what is the Law, yet they determine the Law in all matters, where Issue is joyn'd, and tryed in the principal Case, but where the Verdict is Special.

Hob. f. 227.To this purpose the Lord Hobart in Needler's Case against the Bishop of Winchester, is very apposite—Legally it will be very hard to quit a Jury that finds against the Law, either Common Law, or several Statute Law, whereof all men were to take knowledge, and whereupon Verdict is to be given, whether any Evidence be given to them or not. As if a Fe­offment or Devise were made to one imperpetuum, and the Jury should find cross, either an Estate for Life, or in Fee-simple against the Law, they should be subject to an Attaint, though no man informed them what the Law was in that Case.

The legal Verdict of the Jury to be recorded, is finding for the Plaintiff or Defendant, what they answer, if asked to questions concerning some particular Fact, is not of their Verdict essentially, nor are they bound to agree in such particulars; if they all agree to find their Issue for the Plaintiff or Defendant, they may differ in the motives where­fore, as well as Judges, in giving Iudgment for the Plaintiff or Defendant, may differ in the Reasons wherefore they give that Iudgment, which is very ordinary.

I conclude with the Statute of 26 H. 8. c. 4. That if any Jurors in Wales do acquit any Felon, Murderer, or Accessary, or give an untrue Verdict against the King, upon the Tryal of any Traverse, Recognizance, or Forfeiture, contrary to good and pregnant Evidence ministred to them by persons sworn be­fore the Kings Justiciar. That then such Jurors should be bound to appear before the Council of the Marches, there to abide such Fine or Ransome for their Offence, as that Court should think fit.

If Jurors might have been fined before, by the Law, for go­ing against their evidence in matters criminal, there had been no cause for making this Statute against Jurors, for so doing in Wales only.