after Judgment affirmed in the Exchequer Chamber Or if that proceeding in the Exchequer Chamber doth not come in lieu of Error in Parliament according to the Statute of Eliz. William Bridgman al' Versus Rowland Holt al' A Writ of Error and Petition in Parliament The Case below was thus William Bridgman brings an Assize for the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench and the Plaintiff declares that the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench was time out of mind granted and grantable by the Kings and Queens of this Realm and that King Charles the Second by Letters Patents under the Great Seal of England Dated the Second of June in the Five and twentieth Year of his Reign after a Recital that Robert Henley and Samuel Wightwick were duly admitted to this Office for their Lives granted this Office upon the Petition of Eliott to Silas Titus so soon as it should become void and that Wightwick was dead and Titus had surrendred his Patent did in consideration of Service done by the Earl of Arlington grant this Office to the Plaintiff and his Heirs for the Lives of the Earl of Arlington Duke of Grafton and Dutchess of Grafton and the longer liver of them from and after the Death Forfeiture or Surrender of Sir Robert Henley and that Sir Robert Henly was dead and that thereupon the Plaintiff became seized and was seized of the Office till the Defendants did disseize him c. The Defendants pleaded that they did not wrong or disseize the Plaintiff Upon the Trial of this General Issue at the Bar of the King's-Bench before the three puisne Judges the Chief Justice then sitting near the Defendant's Counsel upon a Chair uncovered the Plaintiff gave in Evidence the Letters Patents of 2 June 25 Car. 2. Then it was proposed by the Counsel for the Defendant That they would prove their Allegation that the Office was anciently granted by the Kings and Queens of England as was declared but no Evidence was given besides this Patent of Car. 2. Then the Counsel for the Defendant waving the just Exception which they might have taken to the Plaintiff's Grant as to him and his Heirs which ought not to be of such an Office for that by that means it might come to an Infant They insisted upon the meer right of Granting the said Office viz. that it was not grantable by the Crown but was an Office belonging to the Chief Justice of the King's Bench and grantable by him Then to prove this it was shewn That this Officer is to Inroll Pleas between Party and Party only and had nothing to do with any Pleas of the Crown or Criminal Matters that all the Rolls and Records in this Office were in the Custody of the Chief Justice that all the Writs to certifie or remove the Records in this Clerk's Office are directed to the Chief Justice and from the nature of the Imployment 't was insisted that in truth he was but the Chief Justices Clerk and that consequently the same must be granted by the Chief Justice And for further proof it was shown by the Records of the Court that for the space of Two hundred thirty five years past this Office when void had been granted by the Chief Justice and enjoy'd accordingly under such Grants In Trin. 36 Hen. 6. Rot. 36. inter placita Reg. Anno Dom. 1458. It is inrolled thus Be it remembred that the Tenth of July this Term in the Court of our Lord the King at Westminster came William Sond chief Clerk of our Lord the King for inrolling Pleas before the King himself in his proper Person and in the same Court of his Free-will did surrender his said Office into the hands of Sir John Fortescue Kt. Chief Justice of that Court to whom of right it doth belong to grant that Office to whomsoever he pleaseth whensoever that Office shall be void during the time that the said Sir John Fortescue shall be Chief Justice and that Office doth resign and relinquish to the use of William Brome and the said Chief Justice doth accept the said Surrender and doth the same day grant the said Office to the said William Brome who is presently admitted into the said Office for his Life and sworn accordingly Mich. 1. Edw. 4. Rot. 51. Upon Brome's Surrender to Sir John Markham then Chief Justice the Chief Justice grants it to Mr. Sonde who is admitted for Life and sworn Mich. 8 Edw. 4. Rot. 26. 1467. Upon the Surrender of William Sonde to the said Sir John Markham then Chief Justice he grants it to Reginald Sonde who is admitted and sworn Reginald Sonde enjoyed this Office till the time of Henry the Seventh and then Bray came in and was Clerk till the 13 H. 7. and then came in Roper Hill 9 Hon. 8. Rot. 3. Anno 1518. Upon the Surrender of this place to Sir John Fineux Chief Justice by John Roper the Chief Justice grants the Office to Sir John Roper and William Roper who are admitted for their Lives and sworn Hill 1 2 Edw. 6. Anno 1547. Upon the Surrender of William Roper Sir John being then dead to Sir Richard Lister then Chief Justice he grants the Office to William Roper and Rute Heywood and they are admitted and sworn Hill 15 Eliz. 1573. Upon the Surrender of William Roper Heywood being dead to Sir Robert Catlin then Chief Justice he granted this Office to John Roper and Thomas Roper for their Lives and they are admitted and sworn Mich. 14 Jac. 1 Rot. 2. Anno 1616. Upon the Surrender of John Roper Thomas being dead to Sir Henry Mountagne then Chief Justice he grants the Office to Robert Heath and Robert Shute for their Lives who are admitted and sworn thereupon Hill 18 Jac. 1. 1620. Shute being dead upon Sir Robert Heath's Surrender to Sir James Leigh then Chief Justice he grants the Office to Sir Robert Heath and George Paul for their Lives and they are sworn and admitted in Court Mich. 5 Car. 1. Upon the Surrender of Sir Robert Heath and Sir George Paul to Sir Nicholas Hide then Chief Justice he grants it to Robert Henley and Samuel Wightwick for their Lives and they are admitted and sworn Trin. 1654. Upon Wightwick's Surrender to H. Roll then Chief Justice Henly being then under Sequestration the Chief Justice grants it to Sam. Wightwick and to Robert Henly Junior for their Lives and they are admitted and sworn Mich. 12 Car. 2. Upon the Surrender of Samuel Wightwick and Robert Henly to Sir Robert Foster then Chief Justice he grants it to Henly and Wightwick for their Lives and they are sworn Wightwick died soon after and Sir Robert Henly enjoy'd it under that Grant 32 years And it was observed on behalf of the Defendant That in all these Records produced and read in Court after the mention of the Surrender to the Chief Justice there are these words To
8 Rep. 171. York and Athen's Case Lane's Rep. 20. Hob. 115. 2 Rolls Abridg. 158. Stevenson's Case 1 Cro. 389 390. 'T was argued that nothing could be inferred from Tanfield's Opinion in 2 Rolls Abridg. 159. which is also in Lane's Rep. 65. for there the Debt was not a Debt to the King till after the Death of the Testator but here is a Forfeiture to the King before the Elegit sued and admitting that the King hath only the pernancy of the Profits yet while he hath so no other Person can intermeddle for the King is intituled to all the Profits even to a Presentment to a Church which was void before the Outlawry as is Beverly's Case 1 Leon. 63. 2 Rolls Abridg. 807. and Oland's Case 5 Rep. 116. And Process of Outlawry is to be favoured and encouraged as 't is a Means for the recovery of just Debts and the effects of them by Forfeiture to the King ought to be favoured as a Prerogative wherewith the King is intrusted to that purpose 'T is a Penalty or Judgment upon him to be put Extra Legem because he contemns the Law and will not obey it so that as to him 't is the greatest Justice in the World that he should not enjoy any benefit of his Estate by virtue of the Law during the time that he despises it And as to Baden 't was his own default that he did not extend sooner he trusted the Party longer then he should and for that he may thank himself Wherefore upon the whole 't was prayed that the Judgment should be affirmed and it was affirmed Hall al' Executors of Tho. Thynne Versus Jane Potter Administratrix of George Potter APpeal from a Decree of Dismission in the Court of Chancery The Case was thus That Thomas Thynne Esq having intentions to make his Addresses to the Lady Ogle gave a Bond of 1000 l. Penalty to the Respondents Husband to pay 500 l. in Ten days after his Marriage with the Lady Ogle the Respondent assisted in promoting the said Marriage which afterwards took effect soon after the said Thynne was barbarously murdered and about six years after Mr. Potter brought an Action upon this Bond against the Appellants as Executors of Mr. Thynne and proving the Marriage recovered a Verdict for the 1000 l. Thereupon the Appellants preferred their Bill in Chancery to be relieved against this Bond as given upon an unlawful Consideration the Defendants by their Answer acknowledge the Promotion of that Marriage to be the Reason of giving the Bond. Upon hearing the Cause at the Rolls the Court decreed the Bond to be delivered up and Satisfaction to be acknowledged upon the Judgment The Respondent petitioned the Lord Keeper for a re-hearing and the same being re-heard accordingly his Lordship was pleased to Reverse that Decree and ordered the Respondents to pay Principal Interest and Costs or else the Bill to stand dismist with Costs And it was argued on behalf of the Appellants That this Bond ought in equity to be set aside for that even at the Common Law Bonds founded upon unlawful Considerations appearing in the condition were void that in many Instances Bonds and Contracts that are good at Law and cannot be avoided there are cancelled in Equity That such Bonds to Match-makers and Procurers of Marriage are of dangerous Consequence and tend to the betraying and oftentimes to the ruin of Persons of Quality and Fortune And if the use of such Securities and Contracts be allowed and countenanced the same may prove the occasion of many unhappy Marriages to the prejudice and discomfort of the best of Families that the Consideration of such Bonds and Securities have always been discountenanced and Relief in Equity given against them even so long since as the Lord Coventry's time and long before and particularly in the Case of Arundel and Trevilian betweeen whom the Fourth of February 11 Car. 1. was an Order made in these or the like words Vpon the hearing and debating of the Matter this present day in the presence of the Counsel Learned on both sides for and touching the Bond or Bill of 100 l. against which the Plaintiff by his Bill prayeth relief It appeared that the said Bill was originally entred into by the Plaintiff unto the Defendant for the payment of 100 l. formerly promised unto the said Defendant by the Plaintiff for the effecting of a Marriage between the Plaintiff and Elizabeth his now Wife which the said Defendant procured accordingly as his Counsel alledged But this Court utterly disliking the Consideration whereupon the said Bill was given the same being of dangerous consequence in precedent upon reading three several Precedents wherein this Court hath relieved others in like Cases against Bonds of that nature thought not fit to give any countenance unto Specialties entred into upon such Contracts It is therefore ordered and decreed That the said Defendant shall bring the said Bill into this Court to be delivered up to the Plaintiff to be cancelled Then 't was further urged That the Appellants had once a Decree at the Rolls to be relieved against the Bond in question upon consideration of the said Precedent in the time of the said Lord Coventry and others and of the Mischiefs and Inconveniences likely to arise by such Practises which increase in the present Age more then in the Times when Relief was given against such Bonds and therefore 't was pray'd that the Decree might be Reversed On the other side it was urged That the Consideration of this Bond was lawful that the assisting and promoting of a Marriage at the Parties request was a good Consideration at Law in all Times to maintain a Promise for payment of Money That this Bond was voluntary and the Party who was Obligor was of Age and sound Memory that here was no Fraud or Deceit in procuring it that Chancery was not to Relieve against Voluntary Acts that here was a great Fortune to be acquired to the Appellant's Testator by the Match that here was Assistance given that the Persons were both of great Quality and Estate and no Imposition or Deceit on either side in the Marriage That it might be proper to Relieve against such Securities where ill Consequences did ensue yet here being none and the thing lawful and the Bond good at Law the same ought to stand that here are no Children Purchasers or Creditors to be defeated that there are Assets sufficient to pay all and consequently there can be no Injustice in allowing this Bond to remain in force that it was the Expectation of the Respondent without which she would not have given her Service in this Matter and that it was the full meaning of the Appellant's Testator to pay this Money in case the Marriage took effect that there was a vast difference between supporting and vacating a Contract in Chancery that tho' Equity perhaps would not assist and help a Security upon such a Consideration if it were defective at Law
only the signification of a Man's purpose how his Estate shall go after his death and tho' it be solemnly made in writing signed published and attested yet if he do any intermediate Act whereby it must be necessarily inferred that such Purpose and Intention of his did not continue the Consequent must be that what was done before as to such Will is totally defeated and unless it be set up anew by a Republication 't is as no Will. The Case of Mountague and Jeffryes 1 Rolls Abridg. 615. and Moore 429. proves this If a Conveyance at Law shews an Intent different from the Will as to Lands 't will be a Revocation tho' such Conveyance be not perfect to all purposes Hodgkinson versus Wood Cro. Car. 23. 'T is a Revocation tho' the Owner should be in again as of his old Reversion The Case of Lestrange and Temple 14 Car. 2. reported in Sid. 90. 1 Keble 357. is stronger but this is stronger yet because 't is not to the old use but limited in a different manner 't is a qualified Fee and to be determined upon the qualifications taking effect and so cannot be the old Estate and if it were yet 't is a Revocation and there 's no Circumstance in the Case that can direct a Court of Equity to differ from the Law and therefore it was prayed that the Decree of Dismission might be affirmed and it was affirmed John Fox Gen ' Plaintiff Versus Simon Harcourt Arm ' Defendant WRit of Error on a Judgment in B. R. The Case was upon a Special Verdict in an Action of the Case upon an Indebitus Assumpsit for Moneys received to the Plaintiff's use brought there by Harcourt versus Fox which Verdict finds the 37 Hen. 8. cap. 1. intituled a Bill for Custos Rotulorum and Clerkship of the Peace Then they find that 1 Will. Mar. intituled An Act for enabling Lords Commissioners for the Great Seal to execute the Office of Lord Chancellor or Lord Keeper and several Clauses therein concerning this Matter Then they find that John Earl of Clare was by Letters Patents dated the 9th day of July Anno 1 Will. Mar. according to the 37 Hen. 8. made Custos Rotulorum for the County of Middlesex and set forth the Letters Patents in haec verba Then they find that the Office of Clerk of the Peace for this County being void the Earl of Clare by writing under his Hand and Seal dated 19 July Anno primo did nominate appoint and constitute the Plaintiff Mr. Harcourt to be Clerk of the Peace for Middlesex for so long time only as he should well demean himself therein and the Instrument was found in haec verba Then they find him to be a Person resident in the County capable and sufficient to have and execute the Office that he took upon him the execution of the said Office and before he did so he at the Quarter Sessions for the said County in open Sessions took the Oath required by the late Act of this King and the Oath of Clerk of the Peace and did do and perform all things necessary to make him a compleat Officer and that during all the time he did execute the sald Office he demeaned himself well Then 't is found That on the fifth of February Anno tertio the said Earl of Clare was in due manner removed from being Custos and William Earl of Bedford by Letters Patents dated the sixth of February was made Custos according to the 37 Hen. 8. and those Letters Patents are also found in haec verba Then they find an Appointment in Writing dated the fifteenth of February by the said Earl of the said Fox to be Clerk of the Peace for the said County to hold the said Office for and during the time the Earl should enjoy and exercise the said Office of Custos so as he well demean himself therein They likewise find Fox to be a Person capable c. and that he took the Oath and did the other things requisite to qualifie himself for the said Office that he did thereupon enter on the Execution of the said Office and during the time that he executed it he well demeaned himself therein and did take the Fees belonging to the said Office which they found to be to the value of five shillings Sed utrum c. Et si c. Et si c. Upon this Judgment was given for the Plaintiff below And it was now argued for the Plaintiff in the Writ of Error That this Judgment ought to be Reversed And first it was said that whatsoever the Common Law was as to ancient Offices could be no Rule in this Matter Many and most of those were for Life but my Lord Coke says That the Office of Chancellor of England could not be granted to any one for Life because it was never so granted the like of Treasurer So that Custom and nothing else can govern in those Offices But here can be no pretence of its being a Common Law Office for the Common Law knew no such thing as Justics of the Peace to whom they say he is a Clerk That the first Statute which makes Justices hath no mention of Clerk but 't was meerly an Incident some Person of necessity was to officiate in that kind And where he is called the Justices Clerk it can only be that he was one appointed by them to make and write their Records for them and 't is probable that in ancient time he that was their Clerk was Custos Rotulorum and intrusted with the keeping of the Records then it coming to be an honorary thing to be Custos he that was the most eminent for Quality amongst them was appointed to that Trust and then he appointed his Clerk under him For there 's no ancient Statute or Law that empowered the Chancellor to make a Custos but he making out the Commission of the Peace might very well name one of them to be Keeper of the Records and to have the first place amongst them And such Person might very well appoint his Deputy or Servant who in time came to be Clerk of the Peace We have no certain but this is the most probable Account of the thing Then the Statute of 37 Hen. 8. recites That the Chancellor had much perverted the Institution by assuming to make Custos's for Life and so the Clerks of the Peace were for Life likewise The end of that Act was not only to remove ignorant Persons for the Common Law it self would turn any such out of Office if he be not able to perform the Duty of it but the Grants for Life were the great Grievance and therefore to remedy that Mischief the Custos must be appointed by Bill signed with the King 's own hand and at his pleasure removeable and the Clerk of the Peace to be appointed by the Custos and to continue only during the time of the others continuing to be Custos This tho' not