made in 17 Car. 1. and many others 17 Car. 1. 25 H. 8. c. 20 21. The Resolution of all the Judges in the Exchequer Chamber That they were bound by and subject to the Laws of England as those of Calais Gascoign and Guien in the Case of the Merchants of Waterford for shipping Staple Goods for Sluce in Flanders to which they pleaded the Kings Licence and Dispensation not pretending freedom from the Statute of 2 H. 6. c. 4. whereupon they were questioned Ireland receiv'd the Laws of England by the Charters and Commands of H. 2. King John H. 3. c. I know no Opinion that Ireland receiv'd the Laws of England by Act of Parliament of England nor had it been to purpose having also a Parliament of their own that might change them Sir Edward Coke is of Opinion Cok. Litt. f. 141. b. Patt 12 H. 3. That they received them by a Parliament of Ireland in several Books in the time of King John and grounds his Opinion upon the words of several Patents of H. 3. which mention King John to have gone into Ireland and carried with him discretos viros quorum communi Concilio ad instantiam Hiberniensium he appointed the Laws of England to be there observed Pat. 18 H. 3. Another Patent of 18 H. 3. he there cites wherein it is said That King John de communi omnium de Hibernia consensu ordained the English Laws to be there observed And the like in effect in 30 H. 3. Cok. 4. Inst f. 349. The same Charters he mentions but not in the same words especially that of 12 H. 3. 1. and to the same purpose that King John by a Parliament in Ireland established the Laws of England there in his 4. Institutes That which occasioned the mistake were the words De communi omnium assensu in the Patents which he conceiv'd to be a Parliament But the Original Act and Command of King John to this purpose and the Charter of 12 H. 3. at large whereof Sir Edward Coke had only short Notes will clear how the English Law came into Ireland and what that Communis assensus meant for they were not received by Act of Parliament in those times Tempore Regis Johannis Pat. 6. Johan m. 6. n. 17. Rex dat potestatem Justic suis Hiberniae quod brevia sua currant per totam terram nostram potestatem nostram Hiberniae quae ibidem nominantur Pat. 6. Johan Johannes Dei Gratia c. Justiciariis Baronibus Militibus omnibus fidelibus suis Hiberniae c. Sciatis quod dedimus potestatem Justic nostro Hibern quod brevia sua currant per totam terram nostram potestatem nostram Hiberniae scilicet breve de Recto de feodo dimidii Militis infra de morte antecessoris similiter de feod Domini Milit. infra Et erit terminus de morte antecessor post transfretationem H. Regis patris nostri de Hibernia in Angl. Et breve de Nova diss cujus erit terminus post primam Coronationem apud Cant. Et breve de fugitivis nativis in quo erit terminus post captionem Dublin Et breve de divisis faciend inter duas villas exceptis Baron Et ideo vobis mandamus firmiter praecipimus quod haec ita fieri firmiter tener per totam potestatem nostram Hiberniae faciatis Teste meipso apud Westmonasteriium secundo die Novembris 17. Claus 7. Johannis Rex M. filio Henr. Justitiar Hiberniae c. Sciatis quod Deremunt exposuit nobis ex parte Regis Connaciae quod idem Rex exigit tenere de nobis tertiam partem terrae de Connacia per C. Marcas per Annum sibi haeredibus suis nomine Baroniae Pat. 6. Johan m. 6. n. 17. Rex c. Justic Baronibus Militibus omnibus fidelibus suis Hibern c. Sciatis quod dedimus potestatem Justic nostro Hiberniae quod brevia sua currant per totam terram nostram potestatem nostram Hiberniae scilicet breve de Recto de feodo Dimidii Mil. infra de morte Antecessor similiter de feod dimid Mil. infra Et erit terminus de morte Antecessor post transfretationem Henr. Regis patris nostri de Hibern in Angl. Et breve de Nova Disseisina cujus erit terminus post primam Coronationem nostram apud Cant. Et breve de Fugit Nativis ejus erit terminus post captionem Dublin Et breve de divisis faciend inter duas villas except Baron Et ideo vobis Mandamus firmiter praecipimus quod haec ita fier firmiter teneri per totam potestatem nostram Hiberniae faciatis Teste meipso apud Westmonast ij die Novembris Claus 12 H. 3. m. 8. Rex dilecto fideli suo Richardo de Burgo Justic suo Hibern salutem De legibus consuetudinibus observandis in Hibernia Mandamus vobis firmiter Praecipientes quatenus certo die loco faciatis venir coram vobis Archiepiscopos Episcopos Abbates Priores Comites Barones Milites Libere tenentes Ballivos singulorum Comitatuum coram eis publice legi faciatis Chartam Domini J. Regis patris nostri cui Sigillum suum appensum est Pat. 6. Joh. n. 17. Dat. apud Westm 2 die Novemb. quam fieri fecit jurari à Magnatibus Hibern de Legibus consuetudinibus Angl. observandis in Hibernia Et praecipiatis eis ex parte nostra quod Leges illas consuetudines in Charta praed contentas de cetero firmiter teneant observent Et hoc idem per singulos comitatus Hibern clamari faciatis teneri prohibentes firmiter ex parte nostra super forisfacturam nostram ne quis contra hoc mandatum nostrum venire praesumat Eo excepto quod nec de morte nec de Catall Hiberniensium occisorum nihil statuatur ex parte nostra circa quindecim dies à die Sancti Michaelis Anno Regni nostri xij super quo respectum dedimus magnatibus nostris Hiberniae usque ad terminum praed Teste meipso apud Westmonast 8. die Maii Anno xij Patentes 30 H. 3. m. 1. Quia pro communi utilitate terrae Hibern unitate terrarum Regis Rex vult de communi Consilio Regis provisum est quod omnes Leges consuetudines quae in Regno Angliae tenentur in Hibern teneantur eadem terra eisdem Legibus subjaceat per easdem regatur sicut Dominus Johannes Rex cum ultimo esset in Hibernia Statuit fieri mandavit Quia etiam Rex vult quod omnia brevia de Communi jure quae currunt in Angl. similiter currant Hibernia sub novo Sigillo Regis Mandatum est Archiepiscopis c. quod pro pace tranquilitate ejusdem terrae per easdem Leges eos regi deduci permittant
because the Libel was That the marriage was Incestuous Next a Consultation might be granted unless cause were shew'd for it was no otherwise Because the Suggestion was not That the marriage was out of the Levitical Degrees but that the persons married were extra leges Leviticales which was as if they had said They were not under the Jewish Common-wealth And then a Consultation might be granted upon this Prohibition as upon that of Mann's Case because the Plaintiff did not averr the marriage to be extra gradus Leviticus and ground his Prohibition thereupon As those two Prohibitions were for marrying the Wives Sisters daughter that is the Wives Neece by the Sister So there is a Case in the Lord Hobbard Hobbard f. 181. a. Keppington where one Keppington married his Wives Sisters daughter was questioned for Incest by the High Commissioners and sentenced and entred into Bond to abstain from her Company but was not divorced and therefore the Wife recover'd a Wives Widows Estate in a Copy-hold notwithstanding the Sentence but no Prohibition was in the Case The same Case is in the Reports which pass for Mr. Noye's f. 29. but mistaken for there in place of his Wives sister it is Fathers sister Hill 21. Car. II. This Case was by the King's Command adjourn'd for the Opinion of all the Judges of England Trin. 22. Car. II. The Chief Justice delivered their Opinions and accordingly Judgment was given That a Prohibition ought to go to the Spiritual Court for the Plaintiff Mich. 20 Car. II. C. B. Sir Henry North Plaintiff William Coe Defendant SIR Henry North hath brought an Action of Trespass Quare clausum fregit against William Coe in a Close upon the new Assignment called Westrow-hills containing Fifty Acres a Close called the Heyland containing One hundred Acres and another called the Delf and Brink containing One hundred and fifty Acres in Milden-hall The Defendant pleads That the said places are part of the Mannor of Milden-hall whereof the Plaintiff was seis'd tempore transgressionis suppositae and that he was then and yet is seis'd of an ancient Messuage with the Appurtenances in Milden-hall being one of the free Tenements of the said Mannor and held of the said Mannor by Rents and other Services in his demesne as of Fee That there are divers freehold Tenements time out of mind in the said Mannor held by several Rents and Services parcel of the said Mannor and that there were and are infra candem Villam divers customary Tenements parcel of the said Mannor grantable Ad voluntatem Domini by Copy That all the Tenants of the free Tenements time out of mind habuerunt usi fuerunt and all the Tenants of the Customary Tenements Per consuetudinem ejusdem Manerii in eodem Manerio à toto tempore supradict usitat approbat habuerunt habere consueverunt solam separalem Pasturam praedict Clausi vocat Westrow-hills cum pertinen for all their Cattel Hogs Sheep and Northern Steers except levant and couchant upon their respective Messuages and Tenements every year for all times of the year except from the Feast of St. Edmond to the Five and twentieth of March next following as belonging and pertaining to their several Tenements And likewise had and used to have solam separalem Pasturam praedict Clausi vocat Westrow-hills from the Feast of St. Edmund every year to the Five and twentieth of March for feeding of all their Cattel Hogs Sheep and Northern Steers except levant and couchant c. Excepted that the Tenants of the Demesne of the Mannor every year from the said Feast to the Five and twentieth of March by custome of the said Mannor depastured their Sheep there That at the time of the Trespass the Defendant put in his own Cattel levant and couchant upon his said Messuage Prout ei bene licuit and averreth not that none of his said Cattel were Porci Oves or Juvenci called Northern Steers but Petit Judicium The like Plea he makes for the Closes called the Haylands Delf and Brink but that the free Tenants as before and customary Tenants had solam separalem Pasturam pro omnibus averiis Porcis Ovibus Juvencis called Northern Steers excepted for all times of the year And that he put in Averia sua levantia cubantia super tenementum praedictum prout ei bene licuit Petit Judicium Cum hoc quod verificare vult quod nullus bovium praedict ipsius Willielmi suerunt Juvenci vocat Northern Steers Whereas no mention is of putting in Oxen but Averia sua in general and no averment that no Sheep were put in The Plaintiff demurs upon this Plea Exceptions to the Pleading The Defendant saith he was seis'd de uno antiquo Messuagio being one of the freehold Tenements of the said Mannor and that there are divers freehold Tenements within the said Mannor and that omnes Tenentes of the said Tenements have had solam separalem pasturam for all their Cattel levant and couchant except Porcis Ovibus and Juvencis called Northern Steers in the place called Westrow-hills and that he put his Cattel levant and couchant prout ei bene licuit 1. That he was seis'd de uno antiquo Messuagio and of no Land is not proper for Cattel cannot be levant in common intention upon a Messuage only 2. He saith he put in his Cattel levant and couchant but avers not as he ought That none of them were Porci Oves or Northern Steers for Porci there is a Rule of Court 3. He pleads in like manner as to the Hayland Delf and Brink That he put in his Cattel and avers that non Bovium praedict were Northern Steers when as there is no mention of putting in Oxen but Averia generally and no averment that there were no Sheep 4. The Plea doth not set forth the Custome of the Mannor but implicity that the Free-hold and customary Tenants have had and enjoy'd per consuetudinem Manerii solam separalem pasturam for all their Cattel which is a double Plea both of the custome of the Mannor and of the claim by reason of the custome which ought to be several and the Court should judge and not the Jury whether the claim be according to the custome alledg'd The custome may be different from the claim per consuetudinem Manerii if particularly alledg'd Lastly the matter in difference is not before the Court formally by this way of pleading for the matter in question must be Whether the Lord of the Mannor be excluded from pasturing with the Tenants in the place in question or from approving the Common If the Defendant had distrained Damage feasant and the Plaintiff brought his Action and the Defendant avow'd propter solam separalem pasturam the Lords right to depasture had come properly in question and by natural pleading Or if the Lord upon the Tenants plea had taken no notice of sola separalis pastura but had
entred and were seis'd before the Trespass suppos'd prout Lex postulat That Mary one of the daughters of the said William Rose July the First 1 Car. 2. died and that Katherine her Sister surviv'd her and is still living That the said Katherine October the First 20 Car. 2. at East-Grimsted entred into the said Tenements and was seis'd prout Lex postulat and the same day and year demis'd the same to the said Thomas Gardner the Plaintiff from the Feast of St. Michael the Arch-angel then last past for the term of Five years then next following By virtue whereof the said Thomas Gardner entred and was possessed until the said Joseph and Daniel Sheldon the same First day of October 20 Car. 2. entred upon him and Ejected him If upon the whole matter the Justices shall think the said Joseph and Daniel Sheldon culpable they find them culpable and assess Damages to Six pence and Costs to Twenty shillings But if the Justices shall conceive them not culpable they find them not culpable upon the words My will is if it happen my Son George Mary and Katherine my Daughters do dye without Issue of their Bodies lawfully begotten then all my Free Lands which I am now seised of shall come remain and be to my said Nephew William Rose and his Heirs for ever The first Question is Whether by this Will any Estate be Q. 1 devis'd to the Son and Heir of the Testator or to his Sisters If any Estate be devis'd what Estate is so devis'd to them Q. 2 or any of them The third Question is What Estate is by this Will devis'd Q. 3 to the Nephew and if any be how it shall take effect whether as a Remainder or as an Executory devise 1. As to the first it is clear That no Estate is devis'd to the Son or Daughters or any of them by express and explicit devise but if any be it is devis'd by implication only and collection of the Testators intent 2. If any Estate be given by this Will by Implication to the Son or Daughters or any of them it must be either a Joynt Estate to them for their lives with several inheritances in tayl or several Estates tayl to them in Succession that is to one first and the Heirs of his or her body and then to another and so successively 3. Such an Intail in Succession cannot possibly be because it appears not by the Will who should first take and have such Estate and who next c. and therefore such an Intail were meerly void for the incertainty of the person first taking as was rightly observ'd and assented to at the Bar. It remains then That the Estate devis'd by this Will if any be to the Son and his two Sisters must be a joynt Estate for their lives with several Inheritances to them in tayl by implication only And I am of Opinion That no such Estate is devis'd by this Will to the Son and two Daughters and I shall first observe That the Law doth not in Conveyances of Estates admit Estates to pass by implication regularly as being a way of passing Estates not agreeable to the plainness requir'd by Law in transferring Estates from one to another And for that the Case is A man according to the Custome of the Mannor Seagood and Hones Case 10 C. 1. Cr. f 336. surrendred to the use of Francis Reeve and of John Son of the said Francis and of the longest liver of them and for want of Issue of John lawfully begotten the Remainder to the youngest Son of Mary Seagood John had only an Estate for life and no Estate tayl by implication it being by conveyance Though as the Book is it might perhaps be an Estate tayl by Will which shews Estates by implication are not at all favour'd in Law though in mens last Wills they are allow'd with due restrictions In a Will Estates are often given by implication But I shall take this difference concerning Estates that pass by implication though it be by Will An Estate given by implication of a Will if it be to the disinheriting of the Heir at Law is not good if such implication be only constructive and possible but not a necessary implication I mean by a possible implication when it may be intended that the Testator did purpose and had an intention to devise his Land to A. but it may also be as reasonably intended that he had no such purpose or intention to devise it to A. But I call that a devise by necessary implication to A. when A. must have the thing devis'd or none else can have it And therefore if the implication be only possible and not necessary the Testators intent ought not to be construed to disinherit the Heir in thwarting the Dispose which the Law makes of the Land leaving it to descend where the intention of the Testator is not apparently and not ambiguously to the contrary Spirt Bences C. 8 Car. 1. Cro. 368. To this purpose the Case is 8 Car. 1. where Thomas Cann devis'd to Henry his youngest Son Item I give to the said Henry my Pastures in the South-fields and also I will that all Bargains Grants and Covenants which I have from Nicholas Welb my Son Henry shall enjoy and his Heirs for ever and for lack of Heirs of his Body to remain to my Son Francis for ever It grew a Question Whether this were an Intayl to Henry of the South-fields or only of the Bargains and Grants which the Testator had from Welb which was a very measuring Case and in determining this Case All the Four Judges agreed That the words of a Will which shall disinherit the Heir at Common Law must have a clear and apparent intent and not be ambiguous or any way doubtful So are the very words of the Book and therefore they resolv'd in that Case That only the Bargains and Grants had from Welb were intayl'd to the youngest Son and that he had only an Estate for life in the Pastures in the South-fields 1. I shall therefore now clear the difference I have taken That the Heir shall never be disinherited by a devise in a Will by implication and not explicit where the implication is only a possible implication and not a necessary implication 2. In the second place I shall shew That the words of this Will do not import a devise to the son and the two daughters for their lives joyntly with respective Inheritances in tayl to the Heirs of their several bodies by any necessary implication but only by an implication that is possible by construction 3. In the third place I shall shew That being so as to the Case in question it is not material whether the devise by way of Remainder to the Nephew be void or not 4. In the fourth place ex abundante and to make the Will of the Testator not ineffectual in that part of the Will I shall shew That the Nephew hath
but for Churches only within the Lordships Marchers whether of the Kings Patronage or others for there it is certain according to the reason given in the Books that the Stewards of the Lordships Marchers to whomsoever they belonged could not write to the Bishops And Newton was right 19 H. 6. That if Action of Dower once brought in the Court of any Signiory real it should be Royal in Wales and there issue should be upon usque accouple in loyal Matrimony which must be tryed by the Bishop but the Court had no power to write to the Bishop but therefore saith he The King shall write to the Marshal to remove the Record hither and then we shall make Process to the Bishop But this is against the Resolution of all the Judges in Cr. 2 Car. 1. f. 34. So as either of Necessity this was a provision in the same Act That as well Quare Impedits should be brought in England of Churches in the Lordships Marchers of Wales as that Writs should be brought in England of Lordships Marchers or any part of them in question because Justice could not be had in Wales either concerning such Lordships or Churches or else Churches within Lordships Marchers being in the same Case for a failer of Justice they were comprehended and ought to be so within the equity of that Act of Parliament for Iustice to be had touching the Lordships themselves and that the Law was such appears 1. That only Quare Impedits for Churches in Lordships Marchers in Wales and not for Churches in the ancient Shires or of the Principality of Wales whereof submission and render was made to E. 1. were to be brought and tryed in England 2. That Tryals and Writs in England for Land in Wales were only for Lordships Marchers and not for any Land in Wales which was of the ancient Principality for the Lordships Marchers were or most of them of the Dominion of England and held of the King in chief as appears by the Statute 28 E. 3. c. 2. and by the Title of the Earl of March before the rendition of the Principality to E. 1. That the Law was so for the Quare Impedits appears in the first place by the Book before cited 11 H. 6. f. 3. where Danby Martin and Newton were of Opinion argued about a Church in Garnsey for the Case before them was not of a Church in Wales That Quare Impedits for Churches in Wales were to be brought in England which was true but not for Churches which were not in any Lordships Marchers Strange affirms positively in the same Case in these words It is frequent to have Quare Impedits in Wales Per Strange 11 H. 6. f. 3. and the Bishops there do serve the Writs directed to them which I my self have often seen And what he said was most true for Churches within the Principality as what the other Judges said was also true concerning Churches within the Lordships Marchers for those Courts had no power to write to the Bishops But this is most manifest by the Statute of Wales 12 E. 1. That the Kings Justiciar there had power within the County where he was Justiciar to write to the Bishops which the Lords Marchers could not do The words of the Law are upon demand of Dower in Wales before the Kings Justiciar Stat. Walliae f. 17. Si forte objiciat quare non debet dotem habere eo quod nunquam fuit tali quem ipsa vocat virum legitimo matrimonio copulata tunc mandabitur Episcopo quod super hoc inquirat veritatem inquisita veritate certificet Justitiarios Walliae secundum certificationem Episcopi procedatur ad judicium It is clear also 10 H. 4. f. 6. That the Bishops of Wales were originally of the Foundation of the Princes of Wales as is the Book of 10 H. 4. and their Courts did write to their own Bishops as the Courts in England did to the Kings Bishops And when the Dominion of Wales was lawfully vested in the King of England his Justices there must have the same power as to the Bishops that the Justices of the Courts of the Prince of Wales had before How the same stands in this point since the Statute of 27 of the Vnion of Wales with England shall be shewed after Besides what hath been already shewed That the Writs out of the Chancery in England issued not into Wales for Tryals of Land other than the Land of Lordships Marchers and by a special Law that was provided but neither for other Lands nor for other Issues arising in Wales Tryals were not to be in the English Counties 11 H. 6. f. 3. A B. In 11 H. 6. Danby saith That if a Church in Wales which is out of the Jurisdiction of the Common Law and a Franchise of the Prince cannot award a Writ to the Bishop and for this cause it must be brought here But other Actions are not maintainable here of a thing done in Wales which was true of a thing done within the Principality and of a Church within the Principality also a Quare Impedit was not to be brought in England 19 H. 6. f. 12. A. In 19 H. 6. Fortescue takes a difference between Wales which was once a Kingdom of it self and the Counties Palatine which were parcels of England and therefore saith The King may send a Record to be tryed in the Counties Palatine because he might do so at Common Law but could not into Wales because he could not at Common Law And then he saith That is the cause that the Statute wills that of things pleaded there as of a Release bearing date there it shall be tryed in the next adjoyning County What this Statute should be he means unless it be the same mentioned in the Case 18 E. 2. is not intelligible for the Statute of 9 E. 3. which speaks of Releases pleaded in Franchises within the Realm That they should be tryed in the County where the Action was brought he cannot intend for that Wales was no Franches nor Franchis of the Realm and Tryals where the Action is brought is not a Tryal in the next adjoyning County to the place where the Issue arises And by Ascue expresly in that Case that Statute proves in it self it doth not extend to a Deed bearing date in Wales but all such Deeds and all other things alledged in Wales shall be tryed in the County next adjoyning by the Common Law for so he adds which could not be So as an Action brought upon a Bond or Deed made in Wales Ireland Normandy Dutchland or upon a matter there alledged cannot possibly be for want of Tryal but a Plea in Barr to an Action brought arising there some question hath been Whether such a Plea shall not be tryed where the Action is brought and in such a Case if the Plea in Barr arise wholly out of the Realm of England the better Opinion is that such Plea