it do induce that with a Title of mine own that you shall fly upon my Title to impeach it and forsake your own as I said before 4. Though I should being Plaintiff make it appear to the Court That the Defendants Title is not good but no way making it appear that my own Title is good what inducement can the Court have to judge for me and against the Defendant when no more right appears for the one than the other and not only so but no right appears for either For in such Case sure Melior est Conditio possidentis I ought not to be sued by him I have not wrong'd and he which hath no right can suffer no wrong 5. It is to no end the Plaintiff should set forth any Title at all if he be not to make it good but it should serve his turn only to impeach the Defendants Title and conclude so unreasonably That if I can make it appear the Defendant hath not a good Title therefore I have and must have Iudgment for me How far in the King's Case the Law differs not from a Common Persons Case 1. And where the King's Title in a Quare Impedit brought by him appears to be no more than a bare suggestion the King can no more than a Common Person and for the same reasons forsake his own Title and endeavour only the destroying of the Defendants Title for the weakning of the Defendants Title without more can no more make a good Title to the King than it can to a Common Person 2. If the King or his Predecessor hath presented by reason of Wardship of Lapse of the Temporalties of a Bishop in his hands of Outlawry and in many other Cases when the Church becomes void next after the Wards Age and suing his Livery after the death of him presented by Lapse Restitution of the Temporalties and Reversal of the Outlawry In all these Cases if the King brings a Quare Impedit and counts that he was seised of the Advowson in gross and presented When the true Patron shall confess his Presentation and avoid it by shewing in their several Cases That his Presentation was in right of the Ward by Lapse by reason of Outlawry or of Temporalties being in his hands The King shall desert his own Title and controvert the Defendants respective Titles in whose Right he did formerly present and if their Title happen to appear not good recover the second Presentation against those manifest Rules of Law deliver'd 3. If this should be Law generally then though the King have no Title to present nor pretend to any for it differs not not to pretend at all and not to be obliged to make good the Title pretended it were a more compendious way when any Patron presented That the King should by Scire Facias compel him to set forth his Title and Demurr upon it or Traverse it and recover the Presentation if the Patrons Title were any way defective Wherein the Law differs in the Kings Case from a Common Persons Case But it must be agreed there are Cases in which the King may desert his own Title and not joyn Issue upon the Defendants Traversing the King's Title or avoiding it but Traverse the Title made by the Defendant in his Barr which is directly taking a Traverse upon a Traverse which regularly a Common Person cannot do nor I think in any Case Long 5 E. 4. in Waste for cutting so many Trees and selling them f. 100. b. but where the first Traverse tender'd by the Defendant is not material to the Action brought as in the Case of Waste in Long 5. E. 4. Hob. Digby Fitz-herbert's Case Woodroffe Codford's Case 37 Eliz. Hob. f. 105. 13 E. 4. f. 8. a. 3 H. 7. f. 3. Stamford Praerogative f. 64. b. The King counting of a Title to himself by Office found or by other matter of Record which is another thing than only surmising a Title as in the Case at Barr may chuse to maintain his own Title found by Office and Traversed by the Defendant or otherwise appearing of Record and take a Traverse to the Title made by the Defendant The Reason is manifest for the Office of it self is a Title appearing for the King and he shall never lose his Possession having a Title but where the Defendants Title doth appear a better But what is this that the King should Relinquish his own Title only surmis'd and controvert the Defendants So is 13 E. 4. f. 8. and many other Books whose Title though it should appear naught leaves no Title in the King But when an Office is found or a Title for the King appears by other matter of Record if the Defendant have no Title the King hath one by his Office or other Record Some Books prima facie seem to make for that Opinion That the King may generally desert his own Title and take a Traverse to the Defendants Br. Prerogative pl. 65. 7 E. 6. Brook Title Prerogative pl. 65 Where a man Traverseth the Office of the King and makes to himself a Title ut oportet Traversing the Title of the King contain'd in the Office the King may chuse to maintain his own Title or to Traverse the Title alledg'd for the King is not bound to stand to the first Traverse which tenders an Issue but may Traverse the matter of the Plea of his Adversary For this no ancient Book is cited But dicitur Hillar 7 E. 6. quod sic utitur in an Information put by the Subject for the King in Scaccario that where the Defendant pleads a Barr and Traverseth the Information the King may Traverse the matter of the Barr if he will 7 E. 6. and is not bound to maintain the matter contain'd in the Absque hoc This Case as appears in the first part of it was in the Case of an Office and therefore makes not at all against my Diversity In the latter part the Assertion seems more general as if the King could in any Case desert to maintain the matter of his Information and Traverse the Barr of the Defendant but there is nothing in this part of the Case positive enough to over-rule my Difference and is no more but Sic utitur ut dicitur in Scaccario which may be a mistaken Report The other Case is likewise in Brook Br. Travers per sans ceo p. 369. 38 H. 8. but no ancient Book-Case cited but only 38 H. 8. and no more An Information in the Chequer the Defendant pleads and Traverseth a material point in the Information whereupon they are at Issue there the King cannot waive this Issue as he may in other Cases where the King alone is party without an Informer ut supra per Attornatum Regis alios legis peritos This Case seems likewise to conclude That when the Information is only for the King and a material point Traversed upon which Issue is joyn'd that the King is not bound
Wine for that Objection reaches to Dispensations with single Persons as well as Corporations 2. The reason why the King cannot dispense in the Cases of Answ 2 buying Offices and Simoniacal Presentations is because the persons were made incapable to hold them and a person incapable is as a dead person and no person at all as to that wherein he is incapable For persons entred in Religion and dead in Law were not to all purposes dead but to such wherein they were incapable to take or give 3. A Member of the House of Commons is by 7 Jac. persona Answ 3 inhabilis and not to be permitted to enter the House before the Oath taken A particular Action is given by 2 H. 4. for such Suit in the Admiralty and such Licence gives the Admiralty a Iurisdiction against Law 4 5 P. M. Dyer 159. Domingo Belatta's Case A third Objection was That this general Dispensation answers Obj. 3 not the end and intention of the Act of 7 E. 6. but seems to frustrate and null that Law wholly And though the King can dispense with penal Laws yet not in such manner as to annihilate and make them void If this Objection held good in fact it is a material one Answ 1 but the Act of 7 E. 6. intended not that no Wine should be sold nor that it should be with great restraint sold but not so loosly as every man might sell it And since it is admitted that the Act of 7 E. 6. restrains not the King's power to licence selling Wine which perhaps was more a Question than this in hand it is clear the King may licence as if the Act had absolutely prohibited selling Wine and left it to the King to licence as he thought fit not abrogating the Law And if so The end of the Act being only that every man should not Answ 2 sell Wine that would as they might when the Act was made and not to restrain convenient numbers to sell for the Kingdoms use The King could not better answer the end of the Act than to restrain the sellers to Freemen of London To the Corporation of Vintners men bred up in the Trade Answ 3 and serving Apprentiships in it And that such should be licenc'd without restraint is most agreeable to the Laws of the Kingdom which permits not persons who had served Seven years to have a way of livelyhood to be hindred from exercising their Trades in any Town or part of the Kingdom Taylors of Ipswich C. Report 11. as was resolved in the Taylors of Ipswich Case in the Eleventh Report And therefore the King had well complyed with the ends of the Law had he licenced such to sell in any part of the Kingdom which he did not but confined them to Towns Obj. 4 It hath been said to the Case of Licences to Corporations for purchasing in Mortmain That the Laws against Mortmain are not penal because they may be dispens'd with without a Non obstante and so cannot penal Laws be Answ 1 It is durus sermo that those Laws are not penal which give the forfeiture of the Land 2. By the Statute of 1 H. 4. c. 6. and 4 H. 4. c. 4. the King is restrained in some Cases from granting as he might at the Common Law Therefore without a Non obstante of those Laws it cannot appear that the King would have granted it if he had been appris'd of those restraining Laws Therefore a Non obstante in such Case is requisite But when a man might by the Common Law purchase without licence as in the Case of Mortmain before the prohibiting Statutes or might Export or Import a prohibited Commodity before restraint by Statute a Licence ex specialia gratia is sufficient without a Non obstante For by petitioning for a Licence the King is sufficiently informed the Law permits not the thing without a Licence which is all the use of a Non obstante This enough appears by the Case in Dyer 269. where a Licence ex speciali gratia is good without issuing any Ad quod damnum in the Case of Mortmain 3. The Writ of Ad quod damnum in that Case which regularly issues informs the King better than a Non obstante would do Obj. 5 Next it hath been said in the Case of Mortmain the King dispenseth only with his own Right and concludes not the mean Lords It is true for the King in no case can dispense but with his own Right and not with anothers Answer hath been offered to the President of Waterford by Obj. 6 which the King dispens'd with the Offence of not bringing the Staple Merchandise from Ireland to Calais being so penal which was an Offence by 10 H. 6. c. and 14 H. 6. c. to the universal hurt of the Kingdom and therefore much greater than selling of Wine contrary to the Statute of 7 E. 6. c. but that was as hath been said Because those Merchants were to pay Custome to the King which was his Inheritance and with which he could dispense Answ This put together sounds thus The Merchants of Waterford were to pay Customes to the King for their Staple Merchandise for which he might dispense if he would but never did for any thing appears The Merchants of Waterford were upon penalties to bring their Staple Merchandise to Calais with which the King could not dispense had no Customes been due from them yet he did dispense with them for that which he could not viz. bringing their Goods to Calais because he did not dispense with them for that which he could viz. their Customes there is no Inference nor Coherence in this Answer But it also appears by the Statute 27 E. 3. c. 11. of the Staple for the reason therein given that the Merchants of Ireland were to pay their Customes in Ireland and to bring their Cockets of their payments there to the Staple lest otherwise they might be doubly charg'd Therefore the Customes which were paid in Ireland before the Goods brought to the Staple was no cause for dispensing with the Corporation of Waterford for not bringing their Merchandise to the Staple according to the penal Laws for that purpose The Licence of Edward the Third pleaded by the men of Waterford was perhaps after the Statute of 27 E. 3. when they were not to pay their Customes at the Staple but however the Licences by them pleaded 1 H. 7. by Henry the Sixth and Edward the Fourth were long after they were to pay their Customes in Ireland and not at the Staple I must say as my Brother Atkins observed before That in this Case the Plaintiffs Council argue against the Kings Prerogative for the extent of his Prerogative is the extent of his Power and the extent of his Power is to do what he hath will to do according to that ut summae potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest if therefore the King have a will
R. White sulp IOHANNES VAUGHAN Miles Capitalis Just de Com̄ Banco An̄o 1674. THE REPORTS AND ARGUMENTS OF THAT LEARNED JUDGE Sir JOHN VAVGHAN Kt. LATE Chief Justice of His Majesties Court OF Common Pleas. BEING All of them Special Cases and many wherein he Pronounced the Resolution of the whole Court of Common Pleas At the time he was CHIEF JUSTICE there Published by his Son EDWARD VAVGHAN Esq LONDON Printed by Thomas Roycroft for Richard Marriott to be sold by Thomas Bassett and George Marriott at their Shops in Fleetstreet and in Westminster-Hall M DC LXXVII TO THE READER PRefaces to Books if written by other Hands than the Author 's own are for the most part Panegyricks and lean more to Flattery than Truth the Writers of them taking more pains to describe themselves than the Author of the Book If they write Elegantly enough or strain sufficiently in his praise they captivate the Reader or at least conceive so into a good Opinion of themselves but the sufficiency of the Author must still appear from his own Work This therefore shall be First only such a brief Account of the Author as is usual of Persons of his Station upon the like Occasion And Secondly the Reason why these Papers see the Light which I conjecture the Author intended should have dyed with him or survived him in very few Hands and those such as he had a particular esteem for He was the eldest Son of Edward Vaughan Esquire and born on the Fourteenth of September in the Year of our Lord 1603. at Trowscoed in the County of Cardigan the Ancient Seat of his Family himself being the Eleventh of that House in a direct Line About the Tenth year of his Age he was sent to be Educated at a Publique School in the City of Worcester and about the Fifteenth removed from thence to Christ-Church in Oxford where although he had a Tutor of the said Colledge yet the Education of him was more especially committed to an Vncle of his own by his Fathers side then a Fellow of All-Souls Colledge in Oxford who being a person of good Learning and Prudence omitted nothing that might cherish the hopes he entertain'd of his Nephew and improve him in all kinds of Learning with which the Vniversity doth season Youth This Care of his Vncles he would frequently commemorate to his Last About the Eighteenth year of his Age he was removed to London and on the Fourth of November in the Year 1621. admitted of the Inner Temple where I have often heard him say that he addicted himself to Poetry Mathematicks and such more alluring Studies at first neglecting that severer of the Laws of England until he became acquainted with that incomparable Person Mr J. Selden who discerning in him a ready Wit and sound Judgment did studiously afford him Occasion of making a right use of two such excellent Ingredients and frequently admitted him to the Converse of himself and other worthy Persons his Cotemporaries where having been instructed in the value of Civil Learning he soon after apply'd himself closely to that Course of Study and more particularly of the Laws of England which he after made his Profession His Practice after he was call'd to the Bar was for the most part in the Star-Chamber where he soon became Eminent He was elected Burgess for the Town of Cardigan to serve in the Parliament Conven'd on the Third of November 1640. where he gave sufficient Testimony his Learning was not confin'd within the Walls of Westminster-Hall but that he was possess'd of great Publique Abilities likewise Soon after King Charles the First withdrew from White-Hall to Hampton-Court and that the Rent between Him and the Parliament was too too visible being no longer able to serve his Prince there he left the House of Commons whence he among other Worthy Members was not long after Secluded by Vote of that House and a new Writ issued forth for the Election of a Member in his place and he betook himself to those Duties wherein he was capable of serving his Prince in his proper County From the Year 1641. in which he retir'd from the Parliament until the Year 1660. in which God blessed us with the Restoration of our present King he did in a manner quit his Profession For in that time he never received a Fee from any Person whatever nor could be prevail'd with to appear in any Court although exceedingly importun'd to it by such as had a desire to make use of his Abilities And the reason I have heard him assign for it was That it was the Duty of an honest Man to decline as far as in him lay owning Jurisdictions that derived their Authority from any Power but their lawful Prince Private Counsel he frequently imparted but that was either gratuitously to such of his Acquaintance as he had a great Esteem for or charitably to such as were not at all or not well able to Fee other Council Thus for the most part for Twenty years together he pass'd a retir'd Life at his own Country House until he was Elected to serve as Knight of the Shire for the County of Cardigan in this present Parliament begun the Eighth Day of May in the Year 1661. and on the Twentieth of May 1668. his Majesty whose Goodness is ever Extensive to worthy Men did by his Commission under the Great Seal constitute him Chief Justice of the Court of Common Pleas in which Imployment he died on the Tenth of December in the Year 1674. Leaving these Remains of his Labours in that Court which having no particular Direction from the Author to that purpose I did for some time resolve should not have been made Publique although I well understood the value of some of them wherein there are Questions handled not familiar in any of our Reports yet extant but in their Nature more Publique This Resolve of mine being imparted to some Learned Gentlemen of the Coyf and others who had a particular esteem for the Author begot Importunities for Copies of several of those Arguments then in my hands which were procured and soon after by what means I know not dispersed further than I intended them and as I have been informed Cited as Authorities Thus having without my privity become so Publique and apprehending that things in themselves good innocent and useful may by mis-application become dangerous and disgustful I conceived it best to procure a Licence for them to speak for themselves that they may bear their own blame and that such as make use of them may have no further share in the Guilt if any such be than that they have done as others do that is Quoted Authority Which I conceive may be done with safety most of the subsequent Cases being not the single Opinions of the Author but the Resolutions of the whole Court by him delivered If in some few other Cases it hath been his Fate in any thing to differ from his Brethren it is no more
14 Jac. B.R. Robson and Francis Case which avoids the Exception Now as to the Second Question Admitting the Iudgment in London as pleaded be no sufficient barr of the Plaintiffs Action or if it be that the Recognizance as pleaded is no sufficient barr For if those will barr there is no further Question If then Iudgment ought to be for the Plaintiff upon the Defendants Plea to the whole matter And I conceive it ought not I shall agree That if the Defendant plead several Judgments against the Intestate or himself as Administrator and Statutes entred into by the Intestate and concludes his Plea That he hath not nor at any time had assets in his hand of the Intestates Estate praeterquam bona cattalla sufficient to satisfie those Judgments and Statutes and averrs they are unsatisfied and which assets are chargeable with the said Judgments and Statutes that this is a good Plea in barr of the Plaintiffs Action and so it is admitted to be in Meriel Treshams Case Meriel Treshams Case 9. Rep. and the Plaintiff must reply That he hath assets ultra what will satisfie those Judgments and Statutes as is there agreed But if the Plaintiff reply That any one of those Judgments was satisfied by the Intestate in his life time saying nothing to any of the rest And the Defendant demurr upon this Replication the Plaintiff must have Iudgment for the Plea was false and the falshood detrimental to the Plaintiff and beneficial to the Defendant for having pleaded he had no more assets than would satisfie those Iudgments one of them being satisfied before he hath confessed there is more assets than will satisfie the other Iudgments by as much as the Iudgment already satisfied amounts unto which would turn to his gain and the Plaintiffs loss if his demurrer were good Turners Case 8. Rep. But to plead That he hath not bona cattalla praeterquam bona quae non attingunt to satisfie the said Judgments and Statutes is not good for the incertainty for if the Judgments and Statutes amount to 500 l. 20 l. are bona quae non attingunt to satisfie them so is 40 l. so is 100 l. so is 200 l. and every Sum less than will satisfie so as by such Plea there is no certain Issue for the Iury to enquire nor no certain Sum confess'd towards the payment of any Debt as is well resolv'd in Turners Case So if a man pleads he hath not assets ultra what will satisfie those Iudgments the Plea is bad for the same reason for 20 l. is not assets ultra that will satisfie them nor 40. nor 100. nor 200. nor doth that manner of pleading confess he hath assets enough to satisfie As to say I have not in my pocket above 40 l. is not to say I have in my pocket 40 l. But in this Case the Defendant hath pleaded payment of several Bonds Bills and Judgments and pleads one Recognizance of 2000 l. and one Judgment of 7000 l. wholly unsatisfied and concludes his Plea with plene administravit And that he had not die impetrationis brevis nec unquam postea aliqua bona seu cattalla of the Intestates in manibus suis administranda praeterquam bona catalla ad valentiam separalium denariorum summarum per ipsum sic ut praesertur solutarum in discharge of the said several Judgments Bonds and Bills Et praeterquam alia bona catalla ad valentiam decem solidorum quae executioni recognitionis praedict judicii praedict per praefat Car. Cornwallis recuperat onerabilia existunt Now upon this Plea if Allington's Iudgment of 2670 l. or the Statute of 2000 l. or both be avoided yet the Plaintiff hath no right to be paid until the Iudgment of 7000 l. be so satisfied and that some assets remain after the satisfaction of it in the Administrators hands for before the Plaintiff hath no wrong nor the Administrator doth none nor hath any benefit by not satisfying the Plaintiff That spungy Reason that the Defendants Plea is all intire and therefore if any part be false as either in that of Allington's Iudgment or the Recognizance the Plea is bad is not sense for if the falshood be neither hurtful to the Plaintiff nor beneficial to the Defendant why should the Plaintiff have what he ought not or the Defendant pay what he ought not Suppose the Defendant pleaded a Iudgment obtain'd against the Intestate or himself and that the Intestate or himself were married at the time of the Iudgment obtain'd which in truth was false for that the one or the other was unmarried at that time his Plea being otherwise good Should this falsness cause the Plaintiff to recover surely no for the falsness is not material nor any way hurtful to the Plaintiff Besides the usual pleading as appears both by Turners and Treshams Case is that the Plaintiff must avoid all payments pleaded in barr until some assets appear in the Administrators hands remaining and then he is to have Iudgment Much noise hath been about this Case and without Reason as I suppose though there were no precedent Iudgment in the point but there is a Judgment per Curiam An Action of Debt was brought against Executors 9 E. 4. f. 12. b. who pleaded a former Recovery against them of 200 l. and Execution issued and pleaded likewise another Recovery against them of 100 l. and travers'd that they had no assets but to satisfie that Execution of 200 l. the Plea was adjudged good by the Court and that the Plaintiff must reply They had assets in their hands ultra the said 200 l. and ultra the said 100 l. for before the 100 l. were also satisfied the Plaintiff was not intitled to his Debt as the Book is 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