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
for the Damages in Debt though by several Originals But it may be said That in a Writ of Error in this kind the foundation is destroy'd and no such Record is left Drury's Case 8. Rep. But as to that in Drury's Case 8. Rep. an Outlawry issued and Process of Capias upon the Outlawry the Sheriff retorn'd Non est inventus and the same day the party came into Court and demanded Oyer of the Exigent which was the Warrant of the Outlawry and shew'd the Exigent to be altogether uncertain and insufficient and consequently the Outlawry depending upon it to be null And the Court gave Iudgment accordingly though the Record of the Outlawry were never revers'd by Error which differs not from this Case where the Order of Commitment is Iudicially declar'd illegal though not quasht or revers'd by Error and consequently whatever depends upon it as the Fine and Commitment doth and the Outlawry in the former Case was more the Kings Interest than the Fine in this The Chief Justice deliver'd the Opinion of the Court and accordingly the Prisoners were discharg'd Hill 23 24 Car. II. B. C. Rot. 615. Edmund Sheppard Junior Plaintiff In Trespass Suff. ss against George Gosnold William Booth William Haygard and Henry Heringold Defendants THE Plaintiff declares for the forcible taking and carrying away at Gyppin in the said County the Eight and twentieth of January 22 Car. 2. Five and twenty hundred and Three quarters of a hundred of Wax of the said Edmunds there found and keeping and detaining the same under Arrest until the Plaintiff had paid Forty nine shillings to them the said Defendants for the delivery thereof to his Damage of 40 l. The Defendants plead Not Culpable and put themselves upon the Country c. The Jury find a Special Verdict 1. That before the Caption Arrest and Detention of the said Goods and at the time of the same Edmund Sheppard the younger was and is Lord of the Mannor of Bawdsey in the said County and thereof seis'd in his Demesne as of Fee and that he and all those whose Estate he hath and had at the time of the Trespass suppos'd in the said Mannor with the Appurtenances time out of mind had and accustomed to have all Goods and Chattels wreck'd upon the high Sea cast on shore upon the said Mannor as appertaining to the said Mannor 2. They further say The said Goods were shipped in Forraign parts as Merchandise and not intended to be imported into England but to be carried into other Forraign parts 3. That the said Goods were wreck'd upon the high Sea and by the Sea-shoar as wreck'd Goods cast upon the Shoar of the said Mannor within the same Mannor and thereby the said Edmund seis'd as wreck belonging to him as Lord of the said Mannor They further find That at the Parliament begun at Westminster the Five and Twentieth of April the Twelfth of the King and continued to the Nine and Twentieth of December following there was granted to the King a Subsidy call'd Poundage Of all Goods and Merchandises of every Merchant natural born Subject Denizen and Alien to be exported out of the Kingdom of England or any the Dominions thereto belonging or imported into the same by way of Merchandise of the value of Twenty shillings according to the particular Rates and Values of such Goods and Merchandises as they are respectively rated and valued in the Book of Rates intitled The Rates of Merchandise after in the said Act mentioned and referr'd to to One shilling c. Then they say That by the Book of Rates Wax inward or imported every hundred weight containing One hundred and twelve pounds is rated to Forty shillings and hard Wax the pound Three shillings four pence They find at the time of the Seisure of the Goods That the Defendants were the King's Officers duly appointed to collect the Subsidy of Poundage by the said Act granted and that for the Duty of Poundage not paid at the said time they seis'd and arrested the said Goods until the Plaintiff had paid them the said Fine of Forty nine shillings But whether the Goods and Chattels aforesaid so as aforesaid wreck'd be chargeable with the said duty of Poundage or not they know not And if not They find the Defendants Culpable and Assess Damages to the Plaintiff to Nine and forty shillings ultra misas custagia And if the said Goods be chargeable with the said Duty they find the Defendants not Culpable It is clear Dyer 31 H. 8. 43. b. n. 22. That formerly in the times of Henry the Eighth Queen Mary and Queen Elizabeth it was suppos'd that some Customes were due by the Common Law wherein the King had an Inheritance for certain Merchandise to be transported out of the Realm and that such Customes were not originally due by any Act of Parliament so is the Book 31 H. 8. It was the Opinion likewise of all the Justices in the Chequer Chamber when Edward the Sixth had granted to a Merchant Alien That he might Transport or Import all sorts of Merchandise not exceeding in the value of the Customes and Subsidies thereof Fifty pounds paying only to the King his Heirs and Successors pro Custumis Subsidiis oneribus quibuscunque of such Marchandises so much and no more as any English Merchant was to pay That this Patent remained good for the old Customes Dyer 1 Mar. f. 92. a. n. 17. wherein the King had an Inheritance by his Prerogative but was void by the Kings death as to Goods customable for his life only by the Statute of Tunnage c. So upon a Question rais'd upon occasion of a new Imposition laid by Queen Mary upon Clothes Dyer 1 Eliz. f. 165. a. b. n. 57 the Judges being consuited about it 1 Eliz. The Book is Nota That English Merchants do not pay at Common Law any Custome for any Wares or Merchandises whatever but Three that is Woolls Woolfells and Leather that is to say pro quolibet sacco lanae continent 26 pierres chescun pierr 14 pound un demy marke and for Three hundred Woolfells half a Mark and for a Last of Leather Thirteen shillings four pence and that was equal to Strangers and English Merchants This was in those several Reigns the Opinion of all the Iudges of the times whence we may learn how fallible even the Opinion of all the Judges is when the matter to be sesolved must be clear'd by Searchers not common and depends not upon Cases vulgarily known by Readers of the Year Books For since these Opinions it is known those Customes called the Old or Antiqua Custumae were granted to King Edward the First in the Third year of his Reign by Parliament as a new thing and was no Duty belonging to the Crown by the Common Law But the Act of Parliament it self by which this custome was granted is no where extant now but undeniable Evidence of it appears For King Edward
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
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
Warranty unless he hath Assets by descent in Fee-simple by the same Ancestor that made the warranty But saith not he that demandeth Fee-tayl by Formedon in Remainder shall not be barr'd quod nota as to the Case Sect. 719. But Collateral warranty is a barr to him that demandeth Fee and also to him that demandeth Fee-tayl without any other descent of Fee-simple Whence it was concluded That the Collateral warranty must barr the Donor without Assets who demands a Fee-simple But Littleton's words end not there but immediately follow Except in Cases which are restrain'd by the Statutes in the plural number which words taken in as Littleton's Case is make his Authority directly for me For when Littleton wrote there were but two Statutes which restrain'd any warranty from binding as at Common Law namely the Statute of Glocester and Westminster the second de Donis now there is a third 11 H. 7. c. 20. So as those words of Littleton are the same as if he had said Except in Cases restrain'd by the Statutes of Glocester and Westminster the second de Donis Whence it follows That by Littleton both Statutes did restrain some Collateral warranties but the Statute de Donis restrains no other than the Collateral warranty of the Donee descending upon the Donor it leaving all other Collateral warranties as at the Common Law Ergo it doth restrain that which is the solution of the Question and according to Littleton I have examined several Editions of Littleton and the words are the same in all Si non in Cases restrained per les Estatutes No man will say that by those words Except in Cases restrained by the Statutes Littleton meant Statutes that were not then made nor perhaps never would be For that were to make him say in instructing his Son for and to whom he writ his Books what the Law was But a Collateral warranty doth bind both for Fee and Fee tayl except in Cases restrain'd by Statutes yet to be made and which perhaps never will be made Besides the words restrain'd per les Estatutes by the Statutes always denote Statutes which signally are and not which are not 3. The third Objection was from Littleton Sect. 716. where it is shewed the Collateral warranty of Tenant in tayl doth bind him in Remainder in tayl which is agreed for the Statute de Donis restrains not the warranty of Donee in tayl descending upon him in Remainder as hath been cleared 4. The fourth Objection was the Case of 41 Ed. 3. Fitz. tit Garranty pl. 16. whence it was urg'd as Justice Herles Opinion and by him spoken 1. That he was at the making of the Statute de Donis 2. That the makers of the Statute intended that the Donees warranty should not barr a Donor stranger in blood to the Donee but should barr a Donor of kindred to the Donee This Case is of no Credit in several respects For 1. The Statute makes no such difference of a Donor stranger and a Donor privy in blood to the Donee as is urg'd in that Case 2. The Statute is That the Donors will was to be observ'd expressed in his Charter of Gift and if a Donor were privy in blood yet his will in his Charter might be the same as that of a stranger Donor and was equally by the Statute to be observed 3. The warranty of Donee in tayl could never descend upon a stranger Donor for such could never be his Heir nor needed any help of the Statute against his warranty 4. The Donor in Frank-marriage who might be Cosen to either party married and must be of kindred to one or both Donees is expresly named as a Donor wronged by the Donees alienation in the Statute Therefore a Donor of the Donees blood was within the remedy of the Statute 5. Nor could this be Herle's Opinion in 41 E. 2. but in the Context of the Report Finchden saith Il est dit in terms Comment Herle que fuit un Justic dit que il fuit al fesanc del Stat. dit as before And for that the name of Herle is written in the Report in large Letters as the Judges Names use to be it was mistaken at the Barr as if the Context had begun Herle que fuit un Justic dit which could not then be an Opinion of Herles For if he were at the making of the Statute de Donis 13 E. 1. he could not then be less than Four and twenty or Five and twenty years old and must have liv'd after until 41 E. 3. above Eighty years But the truth is he died in or soon after 7 E. 3. So it is not Herle's Opinion but Finchden saith It is said in Terms that is of the Year Books how Herle who was a Iustice said He was at the making of the Statute which was made to redress the Mischief to the Donor who was a stranger And therefore he said that the Donor in the Case being no stranger he saw no reason why he should not be barr'd being out of the mischief of the Statute but gave no Rule but the Debate was adjourn'd Another Reason proving this is That it is said Herle que fuit un Justic which no Reporter ever said of a Iustice at present and reporting his Opinion What Finchden said is grounded upon what he had heard was said by Herle in former terms But no such Opinion of Herles appears any where but the contrary clearly in several places The Reporter at the end of the Case 7 E. 3. f. 34. Fitz. Garranty p. 44. hath vid. 5 E. 3. Opinion Herle que le warranty le Ten. in tayl n'est pas barr al donor pour ceo que le statut reherse le mischief quod Donatores fuerunt exclusi de Reversionibus hucusque les heires disherit issint à restrainer tiel point fuit le stat de Donis Conditionalibus fait quod voluntas donatoris observetur Here is Herle's own Opinion expresly contrary to what Finchden by hearsay only said it was In another Case upon question Fitz. 7 E. 3. f. 48. p. 46. Whether the warranty of Tenant in tayl barr'd him in Remainder Herle saith Le statute voet que ceux as queux les Tenements sont done ne eient power de alienation quo minus il descendra al Issue ou retorn al Donor in ceo point le statute voet que le volunt del donor in omnibus observetur mes le statute ne parle riens de cestuy in le Remainder and so rul'd Here is the Opinion of Herle in another Case That the warranty of the Donee in tayl barr'd not the Issue in tayl nor the Donor by the Statute but barr'd him in Remainder as not aided by the Statute In a question Fitz. p. 61. Garranty 6 E. 3. f. 56. Whether the King were barr'd by the warranty of Tenant in tayl his Ancestor for a Reversion descended to him with Assets Herle gives his Opinion as known Law
the Lords of Wales if it be not of Lands between the Lords themselves There is an ancient Book remarkable to the same purpose 8 E. 3. Term. Mich. 59. speaking of the Common Pleas This Court hath more Conuzance of Pleas of the Welch Shires than it hath of Pleas of the County of Chester for the Pleas of Quare Impedits and of Lands and Tenements held of the King in chief in Wales shall be pleaded here and they shall not be so of the County of Chester Fitz. Jurisdiction p. 34. 6 H. 5. Land in Wales immediately held of the King is pleadable in England per Haukford 6 H. 5. no such Book at large The Law and doubtless the Ordinance made by Parliament mentioned in 18 E. 2. concerning Lordships Marchers was the same concerning Land held in chief of the King and are mentioned in the Books as synonimous and were so for all Lordships Marchers were held from the Crown in chief nor could the King probably have other Lands in chief in Wales beside the Lordships Marchers for all was either of Lordships Marchers or Lands belonging to the Principality and held from it and not from the Crown in chief To this purpose there is an ancient Statute 28 E. 3. very convincing 28 E. 3. c. 2. All the Lords of the Marches of Wales shall be perpetually Attendants and annexed to the Crown of England as they and their Ancestors have been at all times before this in whose hands soever the same principality be or shall come And they being no part of the Principality and consequently not under the Statute and Ordinance of Wales 12 E. 1. It was provided by a Law That they should be impleaded in England and the Summons and Tryal to be by the Sheriff of and in the next adjoyning County Accordingly you find the practice was by many ancient Cases remembred but the Year-Books of E. 2 being never printed wherein only that Statute is mentioned otherwise than in Fitz-herbert's Abridgment and the Statute it self not extant gave occasion to men obiter in the time of H. 6. H. 7. long after to say that such impleading for matters arising in Wales in the Courts of England and the Tryals to be in the adjacent Counties because they knew not it came to pass by Act of Parliament was by the Common Law on which had they reflected with seriousness they had found it impossible For that Tryals concerning Lands in Wales quatenus particularly Wales after it became of the Dominion of England should by the Common Law be differing from other Tryals in England and in the adjacent Counties could not possibly be for Wales was made of the Dominion of England within time of memory viz. 12 E. 1. and whatever Tryal was at Common Law must be beyond all memory Therefore no such Tryal for Land in Wales particularly could be by the Common Law It remains then That if such were at Common Law it must be for Lands in all Dominions of the Acquisition of England consequently for Ireland Garnsey and Jersey Gascoign Guyen Calais Tournay as well as Wales but it was never in practice or pretence that any such Tryals should be for any Land in these places Therefore it is evident That it was and it could be no otherwise than by Act of Parliament that Wales differed from the other Dominions belonging to England in these Tryals Nor was it by any new Law made by E. 1. or any his Successors by the Clause in the end of the Statute of Rutland which hath nevâ—r been pretended For by that Clause power was given to change Laws simply for Wales but this way of Tryals changes the Law of England in order to Tryals for Land in Wales which that Clause neither doth nor could warrant Besides this new way of Tryals concerning Lordships Marchers held in chief from the King the Books are full that in Quare Impedits for disturbance to Churches in Wales the Summons and Tryal must be by the Sheriff of and in the adjacent Counties which is often affirmed and agitated in the Books but with as much confusion and as little clearness as the other concerning Land To this purpose is the Case before 8 E. 3. the Pleas of Quare Impedits 8 E. 3. 59. and of Land and Tenements held in chief of the King in Wales shall be pleaded there A Quare Impedit brought by the King against an Abbot 15 E. 3. Fitz. Jurisdiction p. 24. exception taken that the Church was in Wales where the Kings Writ runs not non allocatur for the King was party by the Book as a reason A Quare impedit cannot be brought in Wales 11 H. 6. f. 3. A B. because a Writ to the Bishop cannot be awarded for they will not obey it and so was the Opinion in that Case of Danby Morton and Newton that Quare Impedits for Churches in Wales must be brought only in the Kings Courts and the Opinion is there that the Prince could not direct a Writ to the Bishops in Wales upon Quare Impedits there brought So is the Book of 30 H. 6. of Churches in Wales 30 H. 6. f. 6. B. a Quare Impedit shall be brought in England the Case was cited before concerning Tryals of Lands in Wales A Quare Impedit was brought in the County of Hereford of a disturbance in Wales to present to a Church 35 H. 6. f. 30. A B. exception was taken by Littleton only to this that the Plaintiff did not shew in his Count or Writ that Hereford was the next adjoyning County but by the Book it was well enough for if Hereford were not the next adjoyning County the Defendant might shew it but no exception was taken to the bringing of the Writ into the County of Hereford if it were the next County 36 H 6. f. 33. A B. Quare Impedits shall be brought here of Churches in Wales and shall be sued in the Counties adjoyning for that the Justices read it Bishops will not obey any man there If a Quare Impedit be brought here of a Church in Wales it shall be tryed in the County adjoyning The reason there given is the same as in many other Books Car nous avomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer It is manifestly mis-printed Car nous navomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer which is not sense By these Books and many other it is clear Quare Impedits were formerly brought in England for Churches in Wales as real Writs were for Land and the Tryal was in the next adjoyning English County But as those Tryals for Land were only for Lordships Marchers held of the King in chief or part of them and that by special Act of Parliament as hath been opened So the Quare Impedits brought in England and Tryals there had upon them were not for all Churches in Wales
wants a Tryal See for this 32 H. 6 25. B. 8 Ass pl. 27. d. Dowdales Case Co. l. 6. Thus bringing Actions in England and trying them in Counties adjoyning to Wales without knowing the true reason of it also bringing Quare Impedits in like manner for Churches in Wales without distinguishing they were for Lands of Lordships Marchers held of the King and for Churches within such Lordships Marchers hath occasioned that great diversity and contrariety of Opinions in our Book and at length that common Error That matters in Wales of what nature soever are impleadable in England and to be tryed in the next adjoyning County When no such Law was ever pretended to be concerning other the Kings Dominions out of the Realm belonging to the English Crown of the same nature with Wales as Ireland the Isles of Garnsey and Jersey Calais Gascoign Guyen anciently Nor could it be pretended of Scotland if it should become a Dominion of the Crown of England it being at present but of the King of England though it was otherwise when the King came to the Crown And to say that Dominions contiguous with the Realm of England as Wales was and Scotland would be is a thing so simple to make a difference as it is not worth the answering for no such difference was assignable before Wales became of the Dominions of England and since the Common Law cannot make the difference as is observed before It remains to examine what other Alterations have been by Act of Parliament whereby Jurisdiction hath been given to the Courts of England in Wales without which it seems clear they could have none 1. And first by Parliament 26 H. 8. power was given to the Kings President and Council in the Marches of Wales in several Cases 2. Power was given to indict outlaw and proceed against Traytors Clippers of Mony Murtherers and other Felons within the Lordships Marchers of Wales so indicted in the adjoyning Counties by the same Statute but not against such Offenders within the Principality of Wales which was not Lordships Marchers 3. Some other Laws are of this nature about the same time to punish the perjury of Jurors in Wales generally before the Council of the Marchers 1 E 6. c. 10. â—1 Eliz. c. 3. That Proclamations upon Exigents should issue into Wales was ordained by the Statute of 1 E. 6. for by a Statute before in 6 H. 8. c. 4. such Proclamations went but to the adjoyning Counties Rastall Exigent but the Capias utlagatum went always as I take it being a Mandatory Writ for the King but by 1 E. 6. c. 10. That if any persons dwelling in Wales shall after the time limited by the Act be outlawed that then Writs of special Capias utlagatum single Capias utlagatum Non molestando and all other Process for or against any person outlawed shall issue to the Sheriffs of Wales as immediate Officers of the King's Bench and Common Pleas. Capias Utlagâ—tum So as the issuing of a Capias utlagatum into Wales is clear by Parliament 34 H. 8. Persons having Lands in Wales and bound in Statute Staples or Recognizances in England Process to be made against them out of the Chancery in England to the Sheriffs of Wales and for Recognizances acknowledged before either of the Chief Justices by them Process to be immediately pursued from the said Justices 34 H. 8. c. 26. All Process for urgent Causes to be directed into Wales by command of the Chancellor of England or any of the King's Council as hath been used The next is the Alteration made by the Statute of 27 H. 8. which was very great and by which it is commonly taken that Wales was to all purposes united with England and that since all Process may issue out of the Courts here to Wales It is said that the Dominion and Principality of Wales is and always hath been incorporated to the Realm of England that is ut per Stat. Walliae 12 E. 1. jure feodali non proprietatis and so it is expounded in Calvin's Case Cal. C. 7 Rep. f. 21. B. But there it is said by 12 E. 1. which is there taken for an Act of Parliament Wales was united and incorporated unto England and made parcel of England in possession and the Case of 7 H. 4. f. 14. there cited but this is clearly otherwise for unless that Stat. Walliae were an Act of Parliament it could not make Wales part of England which is much questioned for no such Parliament is found summoned nor Law made in it nor is it likely at that time a Parliament of England should be summoned there for Rutland is doubtless in Wales which had it been part of England then made all Laws made or to be made in England without naming Wales had extended to it which they did not before 27 H. 8. The Incorporation of Wales with England by that Act consists in these particulars generally 1. That all persons in Wales should enjoy all Liberties Priviledges and Laws in England as the natural born Subjects of England 2. That all persons inheritable to Land should inherit the same according to the Laws of England thereby inheriting in Gavel kind was abrogated 3. That Laws and Statutes of England and no other should for ever be practised and executed in Wales as they have been and shall be in England And as by this Act hereafter shall be further ordained By this Clause not only all the present Laws of England were induced into Wales but all future Statutes of England to be made were also for the future in like manner induced into Wales which was more than ever was done in Ireland though Ireland before and by Parning's Act had the present Laws then and Statutes of England introduced into Ireland but not the future Laws and Statutes to be made as in this Case was for Wales But this gave no Jurisdiction in general to the Courts of England over Wales more than before nor otherwise than if a Law were made in England That the Laws and Statutes of England now and for the future always to be made should be Laws in Ireland the Courts in England would not thereby have other Jurisdiction in Ireland than they already have in any respect The Vniting of Wales to England and Incorporating Note doth not thereby make the Laws used in England to extend to Wales without more express words Pl. Com. 129. B. 130. A. By this Act it appears That the Lordships Marchers in the Dominions of Wales did lye between the Shires of England and the Shires of Wales and were not in any Shire most of which Lordships were then in the King's possession and some in the possession of other Lords And that divers of them are by the Act united and joyned to the County of Glocester others to the County of Hereford and others to the County of Salop others respectively to the Shires of Glamorgan Carmarthen Pembrook
whole Record but to say That in such a Court such a Judgment was obtained 92 10. In pleading of a Judgment it may be as well pleaded quod recuperaret as recuperet 93 11. An erroneous Judgment is a good barr until reversed by Error 94 12. How a Recognizance or Statute ought to be pleaded 102 13. Every Defendant in a Quare Impedit may plead Ne disturba pas 58 14. The pleading of a Seisin in gross Appendancy and Presentation in a Quare Impedit 15 15. The Tenant shall never be received to Counter-plead but he must make to himself by his plea a Title to the Land and so avoid the plaintiffs Title alledged by a Traverse 58 16. A Commoner prescribes for Common for Cattel levant and couchant antiquo Messuagio which is not good because Cattel cannot to a common intent be levant upon a Messuage only 152 153 17. See the form of pleading a Custome to have solam separalem pasturam for the Tenant against the Lord 252 253 18. The pleading of per nomen in a Grant and how it shall be taken 174 175 Pluralities See Title Statute 14 22. 1. If a man have a Benefice with Cure whatever the value is and is admitted and instituted into another Benefice with Cure having no Qualification or Dispensation the first Benefice is void and the Patron may present 131 Pope 1. The Pope could not change the Law of the Land 20 2. He could formerly grant a Dispensation for a plurality 20 23 24 3. He did formerly grant Faculties Dispensations for Pluralities Unions Appropriations Commendams c. 23 Prerogative See King 1. By the Common Law all Wrecks did belong to the King 164 2. The extent of the Kings Prerogative is the extent of his power and the extent of his power is to do what he hath a will to do according to that Ut summae potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest 357 3. The King may take Issue and afterwards Demurr or first Demurr and afterwards take Issue Or he may vary his Declaration but all this must be done in one Term 65 4. He may choose whether he will maintain the Office or traverse the Title of the party and so take traverse upon traverse 62 64 Prebend and Prebendary 1. What a Prebendary or Rectory is in the eye of the Law 197 2. A Prebend or Church-man cannot make a Lease of their Possessions in the right of the Church without Deed 197 Prescription See Modus Decimandi Custome 1. What Prescriptions for Commons are good and what not 257 2. How Copyholders shall prescribe for Common 254 3. The Tenant a Commoner prescribes against his Lord to have Solam separalem pasturam this is a void prescription 354 355 356 4. Inhabitants not Corporate cannot prescribe in a Common 254 5. One Commoner may prescribe to have Solam separalem pasturam against another Commoner 255 Presentation See Advowson Ordinary Parson Quare Impedit 1. In a Quare Impedit the Plaintiff must alledge a presentation in himself or in those under whom he claims 7 8 57 2. So likewise must the Defendant ibid. 8 3. What a bare presentation is 11 4. A void presentation makes no usurpation 14 5. When the presentation shall make an usurpation ibid. 6. Where the King presents by Lapse without Title and yet hath other good Title the presentation is void ibid. 7. Where a Parson is chosen a Bishop his Benefices are all void and the King shall present 19 20 21 8. Where a Benefice becomes void by accepting another without a Dispensation the Patron is bound to present without notice and where not 131 Presidents 1. An extrajudicial Opinion given in or out of Court is no good president 382 2. Presidents without a Judicial decision upon Argument are of no moment 419 3. An Opinion given in Court if not necessary to the Judgment given of Record is no Judicial Opinion nor more than a gratis dictum 382 4. But an Opinion though erroneous to the Judgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer 382 5. Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas are not to be regarded 399 6. New presidents are not considerable 169 7. Presidents are useful to decide Questions but in Cases which depend upon fundamental principles from which demonstrations may be drawn millions of Presidents are to no purpose 419 8. Long usage is a just medium to expound an Act of Parliament 169 Privity See Estate 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and Distrained 39 2. Such privity is created by Attornment ibid. 3. Where a new Estate is gained the privity of the old Estate is lost 43 4. Where it is not lost between Grantor and Grantee of a Rent after a Fine levied by the Grantee to his own use ibid. 5. Where an Estate in a Rent may be altered and no new Attornment or privity requisite 144 Priviledge 1. Priviledge lies only where a man is an Officer of the Court or hath a prior Suit depending in the Common Pleas and is elsewhere molested that he cannot attend it 154 2. All Officers Clerks Attorneys of the Common Pleas and their Menial Servants shall have their Writ of Priviledge 155 Process 1. No Process shall issue from hence into Wales but only Process of Outlawry and Extent 396 397 2. A Fieri Facias Capias ad satisfaciendum or other Judicial Process shall not go from hence thither 397 3. Process in Wales differ from Process in England 400 Prohibition See Title Marriage 1. Prohibitions for encroaching Jurisdiction are as well grantable in the Common Pleas as Kings Bench 157 209 2. A man was sued in the Spiritual Court for having married with his Fathers brothers wife and a Prohibition was granted 206 207 c. 3. The Judges have full conizance of Marriages within or without the Levitical Degrees 207 220 4. They have conizance of what Marriages are incestuous and what not and may prohibit the Spiritual Court from questioning of them ibid. 5. How the suggestion upon the Statute of 32 H. 8. concerning Marriages must be drawn to bring the matter in question 247 Proof See Witnesses Evidence 1. A witness shall be admitted to prove the Contents of a Deed or Will 77 Property 1. In Life Liberty and Estate every man who hath not forfeited them hath a property and right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and to punish the wrong-doer 337 2. To violate mens properties is never lawful but a malum in se 338 3. But to alter or transfer mens properties is no malum in se ibid. Proviso 1. A power is granted to make Leases of Lands