man and his heirs such Seat and he and his heirs have used to repair the said Seat If another will libell against him in the Spirituall Court for the same Seat he shall have a Prohibition And he said That he had seen a Judgement in 6. E. 6. That if Executors lay a Grave Stone upon the Testator in the Church or set up his Coat-armour in the Church If the Parson or Vicar doth remove them or carry them away that they or the heir may have their Action upon the Case against the Parson or Vicar Note in the principall no Prohibition for the reasons before Trinit 10. Jacobi in the Common Pleas. 287 The Archbishop of York Sedgwick's Case THe Archbishop of York and Doctor Ingram brought and exhibited a Bill in the Exchequer at York upon an Obligation of seven hundred pound and declared in their Bill in the nature of an Action of Debt brought at the common Law which matter being shewed unto the Court of Common Pleas by Sedgwick the Defendant there A Prohibition was awarded to the Archbishop and to the said Court at York And Cook chief Justice gave the reasons wherefore the Court granted the Prohibition 1. He said because the matter was meerly determinable at the common Law and therefore ought to be proceeded in according to the course of the common Law 2. Although the King hath granted to the Lord President and the Councel of York to hold pleas of all personall Actions yet he said they cannot alter the form of the proceedings For as 6. H. 7. 5. is The King by his Grant cannot make that inquirable in a Leet which was not inquirable there by the Law nor a Leet to be of other nature then it was at the common Law And in 11. H. 4. it is holden That the Pope nor any other person can change the common Law without a Parliament And Cook vouched a Record in 8. H. 4. That the King granted to both the Universities that they should hold plea of all Causes arising within the Universities according to the course of the Civil Law and all the Judges of England were then of opinion That that grant was not good because the King could not by his Grant alter the Law of the Land with which case agrees 37. H. 6. 26. 2. E. 4. 16. and 7. H. 7. But at this day by a speciall Act of Parliament made 13. Eliz. not printed The Universities have now power to proceed and judge according to the Civil Law 3. He said That the Oath of Judges is viz. You shall do and procure the profit of the King and his Crown in all things wherein you may reasonably effect and do the same And he said That upon every Judgement upon debt of forty pound the King was to have ten shillings paid to the Hamper and if the debt were more then more But he said by this manner of proceeding by English Bill the King should lose his Fine 4. He said That if it was against the Statute of Magna Charta viz. Nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae And the Law of the Land is That matters of fact shall be tried by verdict of twelve men but by their proceedings by English Bill the partie should be examined upon his oath And it is a Rule in Law That Nemo tenetur seipsum prodere And also he said That upon their Judgement there no Writ of Error lyeth so as the Subject should by such means be deprived of his Birth-right 5. It was said by all the Justices with which the Justices of the King's Bench did agree That such proceedings were illegall And the Lord Chancellor of England would have cast such a Bill out of the Court of Chancery And they advised the Court of York so to do and a Prohibition was awarded accordingly Trinit 10. Jacobi in the Common Pleas. 288 Doctor HUTCHINSON's Case DOctor Hutchinson libelled in the Spirituall Court against one of his Parishioners for Tithes The Defendant there shewed that the Doctor came to the Parsonage by Symony and Corruption And upon suggestion thereof made in the Common Pleas prayed a Prohibition Doctor Hutchinson alledged that he had his pardon and pleaded the same in the Spirituall Court And notwithstanding that the Court granted a Prohibition because the Pardon doth not make the Church to be plena but maketh the offence onely dispunishable But in such case If the King doth present his presentee shall have the Tithes Trinit 10. Jacobi in the Common Pleas. 289 NOte by Cook Chief Justice that these words viz. Thou wouldest have taken my purse from me on the high way are not actionable But Thou hast taken my money and I will carry thee before a Justice lay felony to thy charge are actionable Mich. 11. Jacobi in the Common Pleas. 290 HATCH and CAPEL's Case IN an Action upon the Case upon an Assumpsit brought against the Defendant The Plaintiffe declared How that one Hallingworth who was the Defendants Husband was indebted unto the Plaintiffe eight pound ten shillings for beer and that he died and that after his death the Plaintiff demanded the said mony of the Defendant his wife and she in consideration that he would serve her withbeer promised that she would pay unto the said Plaintiff eight pound ten shillings and for the rest of the beer at such a day certain And the Plaintiffe did averr That he did sell and deliver to her Beer and gave her day for the payment of the other money as also for the Beer delivered unto her and that at the day she did not pay the Money Cook and all the other Justices agreed That the Action would well lie and that it was a good Assumpsit and a good consideration for they said That the forbearance of the money is a good consideration of it selfe and they said That in every Assumpsit he who makes the promise ought to have benefit thereby and the other is to sustain some losse And judgement was given for the Plaintiff Mich. 11. Jacobi in the Common Pleas. 291 NORTON and LYSTERS Case IN the Case of a Prohibition the Case was this Queen Elizabeth was seised of the Manor of Nammington which did extend into four Parishes viz. Stangrave and three other And the Plaintiff shewed That he was seised of three Closes in Stangrave and prescribed That the said Queen and all those whose Estate he hath in the said Closes had a Modus decimandi for the said three Closes and for all the Demeanes of the said Manor in Stangrave And whether the Venire facias should be de parochia de Stangrave or of the Manor was the question And it was resolved by the whole Court That the Visne should be of the Parish of Stangrave and not of the Manor And the Difference was taken when one claimes any thing which goes unto the whole Manor and when only to
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
The Case shortly is A. being seised in Fee makes a gift in tail to B. and that descends to four daughters c. And the Plaintiff replies That A. was seised in Fee and gave the Lands to B. and to his Heirs Males and the Plaintiffe claimes the entail as Heir Male and the Defendants under the generall tail absque hoc that A. was seised in Fee 27. H. 8. 4. by Englefield If in Trespass the Defendant plead the Feoffment of a stranger and the Plaintiff saith That he was seised in Fee and made a Lease for years to the said stranger who enfeoffed the Defendant he need not to traverse absque hoc that he was seised in Fee C. 6. part 24. The seisin in Fee is traversable Br. Travers 372. acc Dodderidge Justice The seisin in this Case is traverseable Ley Chief Justice Take away the Seisin and then no gift and therefore the Seisin here is Traverseable Haughton and Chamberlain Justices agreed The Court resolved That either the Seisin in Fee or the gift in tail is traverseable Dodderidge Justice If you both convey from one and the same person then you must traverse the conveyance It is a rule C. 6. part 24. there the Books are cited which warrants the traverse of either Quod nota It was adjudged for the Plaintiff Trinit 21. Jacobi In the Kings Bench. 494 Sir EDWARD FISHER and WARNER's Case THE Testator being indebted unto Fisher made Warner his Executor and Warner in consideration that Fisher would forbear suing of him upon the Assumpsit of the Testator did promise to pay him Fifty Pounds and in an Action upon the Case upon this promise Warner pleaded Non Assumpsit in the Common Pleas and it was found for the Plaintiff And a Writ of Error was brought in this Court because it was not shewed for what consideration the Testator did promise 2. Because it was not shewed That Warner the Executor had Assets in his hands It was said by the Councel of Sir Edward Fisher That they need not shew that he hath Assets because the Defendant Warner was sued upon his own promise C. 9. part 94. The Testator made a promise to pay to Fisher fifty pound and died The Executor in consideration of the forbearance of a Suit upon that promise of the Testator doth assume to pay c. The Jury find for the Plaintiff The Error is that no time is limited nor no place where the promise was made and also it is not shewed when the Testator died and so it is not shewed whether the promise were made in the life time of the Testator or not for if it were in the life time of the Testator then the promise was void Nor is the time of the forbearance shewed and so no good consideration Hill 5. Jacobi a consideration to forbear paululum tempus is no good consideration by Cook And the like case was adjudged 36. Eliz. Rot. 448. Sackbdos case We do alledge de facto that we have forborn our Suit and that the Defendant hath not paid us the money Dodderidge Justice It is alledged that the Plaintiff paid money to the Testator upon which he promised And the Action now brought is upon the promise of the Executor Part of the promise is That he paid the fifty pound to the Testator and that ought to be proved in evidence to the Jury C. 6. part Gregories case if it be not specially named how he shall prove it Haughton to forbear to sue him is for all his life time and not paululum tempus Dodderidge Justice Exception was taken that he doth not shew that the Testator was dead at the time of the promise by the Executor It was shewed That after the death of the Testator that he took upon him the Execution of the Will and then promised and that of necessity must be after the death of the Testator Trinit 21. Jacobi in the King 's Bench. 495 WILLIAM's and FLOYD's Case IN an Ejectione firme The Array was challenged because it was made at the Nomination of the Plaintiffe And by consent of the parties two Atturneys of the Court did try the Array The question was Whether the Triall of the Array was good It was said by the Councel which argued for the Defendant That it was not good If one of the four Knights be challenged the three other Knights shall try that challenge and if he be found favourable he shall be drawn and if another of the Knights be challenged hee shall be tried by the other two and if one of the two be challenged then a new Writ shall issue forth to cause three Knights to appear 9. E. 4. 46. The two which quash the Array ought to try the Array of the Tales for that they are strangers to them The assent of the parties in this case is to no purpose for the consent of the parties cannot alter the Law neither can the King alter the Law but an Act of Parliament may alter the Law 29. Ass 4 19. H. 6. 9. by Newton 27. H. 8. 13. Where a triall cannot be out of the County by the assent of the parties and if it be it is errour By the Councel of the other side contrary This triall of the Array is much in the discretion of the Judges for sometimes it is tried by the Coroners and they are strangers to the Array 21. Ass 26. 20. Ass 10. there the Judges at their discretion appointed one of the Array and the Coroners to try it 27. Ass 28. there upon such a challenge it was tried by the Coroners and Shard said That the triall by any of them was sufficient and by Forriners de Circumstantibus 31. Ass 10. so as it rests much in the discretion of the Judges 29. Ass 3. there it was denied But note That that was in Oyer and Terminer and there it did not appear that the Array was made at the Nomination of one of the parties but in other challenges it may be tried by one of the Panell But in our case they were all challenged was the objection 9. E. 4. 20. Billing For if one of the parties will nominate all of the Jurours to the Sheriffe it is presumed that they are all partiall and 〈◊〉 â—his case the whole Array is challenged but in other cases he may challenge one or two of the Array and yet the others may be indifferent But admit it had been errour yet being by the assent of the parties it is no errour Baynams case in Dyer A Venire facias by assent of the parties was awarded to one of the Coroners and good Dyer 367. 43. E. 3. Office of Court 12. One of the twelve doth depart If the Justices do appoint one of the panell to supply his place it is erroneus but yet if it be with the assent of the parties it is good So in our case 21. E. 4. 59. Brian saith That he hath not seen more then two to try the Array yet by assent of the
because that the particular estate was determined The cause of forfeiture was because that the Copiholder had made a lease for life Pasch 8. Iacobi in the Common Pleas. 242 Dr. NEWMAN's Case IN this Case it was said by Cook Chief Justice That it had of late time been twice adjudged that if Timber trees be oftentimes topped and lopped for fuell yet the tops and lops are not Tithable for the body of the trees being by law discharged of Tithes so shall be the branches and therefore he that cutteth them may convert them to his own use if he please Pasch 8. Jacobi In the Exchequer Chamber 243 KERCHER's Case AN Action upon the Case was brought in the Common Pleas upon a simple contract made by the Testator which afterwards came into the Exchequer Chamber before all the Judges Cook in the Common Pleas was of opinion that the Action would lie Tanfield Chief Baron said That in these cases of Equitie it were most reason to enlarge and affirme the Authoritie of the Common law then to abridge it and the rather because the like Case had been oftentimes adjudged in the Kings Bench and there was no reason as he said that there should be a difference betwixt the Courts and that it would be a Scandall to the Common Law that they differed in opinion Afterwards at another day the Case was moved in this Court And Walmesley Justice doubted if as before But Foster held that the Action was maintainable And Cooke desired that Presidents might be searched And he said That he could not be perswaded but if the Executor be adverred to have Assetts in his hands sufficient to pay the specialties but that he should answer the debt Note the money demanded was for a Marriage portion promised by the Testator Pasch 8. Jacobi in the Common Pleas. 244 ADAMS and WILSONS Case Note It was said That when a false Judgement passeth against the Defendant he may pray the Court that it be entred at a day peremtory so as he may have Attaint or a Writ of Error And Cook Chief Justice said That if Judgment in the principall Action be reversed the Judgment given upon the Scire facias shall also be reversed because the one doth depend upon the other Walmesley in this Case said That it had been the usual course of this Court That if one deliver a plea unto An Aturney of the Court as the Last Terme and it is not entred that now at another Terme the Defendant might give in a new plea if he would because the first is not upon Record Pasch 8. Iacobi in the Common Pleas. 245 CULLINGWORTH's Case IF one be bounden in an Obligation That he will give to J. S. all the Goods which were devised to him by his father in Debt brought upon such an Obligation the Defendant cannot plead that he had not any Goods devised unto him for the Bond shall conclude him to say the contrary Vide 3. Eliz. Dyer 196 Rainsford Case Pasch 8. Iacobi in the Common Pleas. 246 QUOD's Case QVod had Judgement in an Action upon the case at the Assizes and damages were given him to Thirty Pound Hutton Serjeant moved in Arrest of Judgement That the Venire facias was de duodecim and that one of them did not appear so as there was one taken de circumstantibus and the entry in the Roll was That the said Jurour exactos venit but the word Juratus was omitted And for that cause the Judgement was stayed Mich. 8. Jacobi in the Common Pleas. 247 STONE 's Case STone an Atturney of the Court was in Execution in Norfolk for One thousand Pound and by practice procured himself to be removed by Habeas corpus before Cook Chief Justice at the Assizes in Lent and escaped to London and in Easter Terme the Bailiffe took him again and he brought an Action of false Imprisonment against the Bailiffe and it was holden by the Court That the fresh Suit had been good although he had not taken him in the end of the year if enquiry were made after him and so by consequence the Action was not maintainable Mich. 8. Jacobi in the Star-Chamber 248 MARRIOT's Case NOte It was agreed in this Case for Law That the Sheriffe cannot collect Fines or issues after a generall pardon by Parliament and therefore one Thorald the under Sheriffe of N. who did so was questioned and punished in the Star-Chamber Mich. 8 Jacobi in the Common Pleas. 249 JOLLY WOOLSEY's Case JOlly Woolsey of Norfolk brought an Action of Trespass against a Constable of Assault and Battery and Imprisonment the Defendant as to the Assault and Battery pleaded Not guilty and justified the imprisonment by reason of a Warrant directed unto him by a Justice of Peace for the taking and to imprison the Plaintiffe for the keeping of an Ale-house contrary to the Statute 12 Feb. 5. El. whereas the Statute was 12 Feb. 5. Ed. 6. and the matter was found by speciall Verdict And it was holden by all the Justices That the misrecitall of the Act was not materiall for it being a generall Act the Justices ought to take knowledge of it And Cook Chief Justice said That a man cannot plead Nul tiel Record against an Act of Parliament although that in truth the Record be imbezelled if the Act be generall because every man is privy to it Mich. 8. Iacobi In the Common Pleas. 250 NEWMAN and BABBINGTON's Case IT was resolved in this Case That if Debt be brought against an Executor who pleads that he hath fully administred and it is found that he hath Assets to 40l. whereas the Debt is 60l l that a Judgement shall be given for the 60l. against the Defendant and upon that Judgment if more Assets come after to the Executors hand the Plaintiffe may have a Scire facias Mich. 8. Jacobi in the Common Pleas. 251 WALLER's Case NOte It was said by Cook Chief Justice That if the King present one to a Benefice and afterwards presenteth another who is admitted instituted and inducted the same is a good repeal of the first presentation And he said That if the Lord doth present his Villain to the Church the same is no enfranchisement of him for that presentation is but his commendation And if the King will present a French man or a Spaniard they shall not hold the Benefice within this Realm for that the same is contrary to a special Act of Parliament Mich. 9. Jacobi in the Common Pleas. 252 NOte It was holden by all the Justices That Perjury cannot be commited in the Court of the Lord of Copy-holds or in any Court which is holden by Usurpation otherwise is it in a Court Leet or Court Baron which is holden by Title Trinit 8. Jacobi in the Common Pleas. 253 BURY and TAYLOR's Case IN an Ejectione firme brought upon Not guilty pleaded by the Defendant it was given in Evidence to the Jury to this effect viz. That one J. S. who did
expressly that he recover treble damages yet because it did amount to so much if the words of the sentence be joyned together It was directed that a special Prohibition in which the Statute and the whole matter is to be mentioned be awarded And in this case it was agreed by the whole Court That the Statute of 2 â— 6. for substraction of Tythes meerly doth not give any damages but if the Tythe be first set forth and then they are substracted there because the Parson had once an interest in them he shall recover treble damages And the principal Case was resembled by Warburton Justice to the case of Waste that if the Jury give damages 20l l there the Court shall treble the damages and make the same 60l and so it was done in the principal case Hill 11 Iacobi in the Common-Pleas 342. GIPPE's Case A Man Libelled for Tythes in the Spiritual Court the Defendant alleadged a Modus Decimandi and thereupon had a Prohibition and afterwards the Plaintiffe in the Prohibition did not prove his suggestion within six months and therefore the Court granted a Consultation because the Law hath appointed a certain time within which time the suggestion is to be proved Otherwise the Parson should be delayed and prejudiced in his Tythes and so it was adjudged in Parson Bugs case Mich. 8. Jacobi in this Court Hill 11 Jacobi in the Kings Bench. 343. CROSSE and STANHOP's Case AN action of false Imprisonment was brought against the Defendant and two other Justices of Peace of the County of York The Defendants justified the Imprisonment by reason of the Statute of 1 M. cap. That it should not be lawful for any maliciously and contumeliously to molest or disquiet any person or persons which are Preachers or after should be Preachers And the Plaintiffe demurred upon the Plea in Bar generally and two Exceptions were taken to the Pleading 1. Because the words of the Statute were misrecited for the words of the Statute are in the disjunctive maliciously or contumeliously And the opinion of the Court was that when the precedent subsequent words disjunctive are all of one sense that the word Or is all one with the copulative but where they are of divers natures as by word or deed it is otherwise The second Exception was That where the words were by the greater part of the Justices the Recital was by the better part of the Justices But notwithstanding these Exceptions it was adjudged against the Plaintiffe Pasch 12 Iacobi in the Kings Bench. 344. CARTWRIGHT's Case CArtwright prayed a Prohibition and the Case was this A. lying sick upon his bed made his Will and afterwards said unto his Executors named in the Will I will that B shall have twenty pounds more if you can spare it And the Executor answered and said Yes forsooth but no Codicil was made of the same Legacie And a Bill was preferred in the Spiritual Court for the Legacie whereupon the Executor prayed a Prohibition And it was holden by this Court that although this Court hath not power to hold plea of the thing Libelled for there in the Spiritual Court yet it hath power to limit the Jurisdictions of other Courts and if they abuse their authority to grant a Prohibition Vid. 2 H. 4. 10. But it was doubted whether the Spiritual Court as this case is might give remedy to the person for the Legacie For the same not being annexed to the Will by a Codicil it was but fidei commissum and so the doubt was Whether the Spiritual Court might hold plea of it For if they cannot hold plea of it then in this case a Prohibition may be lawfully granted although that this Court have not power nor jurisdiction of the thing it self The Court would be advised of it and therefore it was adjourned Pasch 12 Iacobi in the Kings Bench. 345. Sir CHRISTOPHER HEYDON's Case GOdsall Shepard Smith brought an Assise of Novel disseisin against Sir Christopher Heydon which was tryed at the Assises in Norfolk before Sir Tho. Fleming Lord Chief Justice of England and Justice Dodderidge which was found for the Plaintiffs and Judgment was given for them in the Court of Common-Pleas And thereupon Sir Christopher Heydon brought a Writ of Error in the Kings Bench and assigned for Error That whereas the Judgment was given upon his own Confession the Judgment was entred That the Plaintiffs did recover per visum Recognitorum Assise predict And after argument in the Kings-Bench it was adjudged by the whole Court that the Judgment given in the Common-Pleas should be affirmed notwithstanding the Error assigned And now to reverse the Judgment given in the Kings Bench he brought another Writ of Error in Parliament Cook Chief Justice said That the Clarks of the Chancery ought not to make a Writ of Error to the Parliament unlesse they have the Kings licence so to do And it was agreed by the whole Court that a Writ of Error lieth in Parliament upon the Transcript of the Record without bringing of the Record it self in Parliament For the Parliament is holden at the Kings pleasure and may be dissolved before the Errors be discussed and so the Record it self cannot be brought here again because the Parliament which is a higher Court was once possessed of it 8 H. 5. Error 88. The same Law in Error upon a Judgment given in Ireland 5 E. 2. Error 89. where only the Transcript of the Judgment is removed For if the Record it self should be brought into England it might be that before it came hither it shall be drowned in the sea and it is dangerous to commit a Record to the mercy of the winds and sea And Error lieth to reverse a Fine upon the Tenor of the Record and it is not necessary to bring the Fine it self because there is not any Chirographer in this Court to examine it At another day the same Term George Crook and Noy took five Exceptions to the said Writ of Error the first was Because the Writ doth recite the Judgment to be in Assis capt coram Tho. Fleming Capital Justiciar ad Placita Johannem Dodderidge milit unum Justic ad Placit coram nobis tent And the Exception was because that this latter addition was not to them both Dodderidge Justice held that the same was no good Exception to abate the Writ of Error because the omission is only in the addition of Honour which is surplusage and the Person is certain and his power appears to take the Assise and that Exception is not in point of jurisdiction but of denoting of the person and therefore is like the Case in 19 Eliz. Dyer 356. which is a stronger Case and 6 E. 6. Dyer 77. Haughton and Cook contr But Crook Justice did agree with Dodderidge that the addition of the same was but surplusage and that the Writ had been well enough without it Cook Chief Justice held the contrary For then he varieth from their
6. 30. 18 E. 4. 2. 36 H. 6. 7. Also he said When a Declaration is general the Defendant need not traverse 1 E. 4. 9. 2 E. 4. 28. And further he said That the Statute of 27 Eliz. cap. 5. of Demurs helped that defect for that it is but only in matter of form But the Justices did not argue that point But the Question which they made was Whether the Constitution or Ordinance were lawful or not And as to that it was holden by the whole Court That the said Ordinance was unlawful And it was agreed by the Court That the King might make Corporations and grant to them that they may make Ordinances for the ordering and government of any Trade but thereby they cannot make a Monopoly for that is to take away Free-trade which is the birthright of every Subject And therefore the Case was in 2 H. 5. 5. in Debt upon a Bond upon Condition That one should not use his Trade of a Dyer in the Town where the Plaintiffe did inhabit for one year And there said That the Obligation was void because the Condition was against the Law And he swore by God if the Plaintiffe were present that he should go to prison till he had paid a Fine to the King Yet regularly Modus Conventio vincunt legem 2. It was resolved That although such Clause was contained in the Kings Letters Patents yet it was void But where it is either by Prescription or by Custome confirmed by Parliament there such an Ordinance may be good Quia Consuetudo Legalis plus valet quam Concessio Regalis The King granted unto the Abbot of Whitny the Custody of a Port which is as it were a Key of the Kingdom and therefore the Grant was void and so adjudged And such Grants are expresly against the Statute of 9 E 3. cap. 1. And the Charter granted by King Henry the 8. to the Physitians of London hath the same Clause in it But if it had not been confirmed by Act of Parliament made 33 H. 8. it had been void The King granted unto B. that none besides himself should make Ordnances for Battery in the time of war Such Grant was adjudged void But if a man hath brought in a new Invention and a new Trade within the Kingdom in peril of his life and consumption of his estate or stock c. or if a man hath made a new Discovery of any thing In such Cases the King of his grace and favour in recompence of his costs and travail may grant by Charter unto him That he only shall use such a Trade or Trafique for a certain time because at first the people of the Kingdom are ignorant and have not the knowledge or skill to use it But when that Patent is expired the King cannot make a new Grant thereof For when the Trade is become common and others have been bound Apprentices in the same Trade there is no reason that such should be forbidden to use it And Cook Chief Justice put this Case The King granted to B. That he solely should make and carry Kersies out of the Realm and the Grant was adjudged void which Crook concessit 3. It was resolved That this Charter was void because of the words viz. Nisi ante eos vel duos eorum probationem fecerit c. And therefore it was considered what proof should be sufficient for the party And as to that it was agreed That the proof cannot be upon Oath for such a Corporation cannot admidister an Oath unto the party And then the proof must be by his Indentures and Witnesses and perhaps the Corporation will not allow of any of them For which the party hath no remedy against the said Corporation but by his Action at the Common Law and in the mean time he should be barred of his Trade which is all his living and maintenance and to which he had been Apprentice for seven years Another reason was given because that by this way they should be Judges in their own cause which is against the Law And the King cannot grant unto another to do a thing which is against the Law And afterwards Trin. 12 Jacobi Judgment was entred Quod Querentes nihil capiant per Billam And Judgment was then given for the Defendant Pasch 12 Iacobi in the Kings Bench. 352. LINSEY and ASHTON's Case LInsey brought an Action of Debt against Ashton upon a Bond the Condition of which was to perform an Award The Defendant said that the Award was That the Defendant should surcease all suits depending betwixt them which he had done The Plaintiffe in his Replication said That the Arbitrators made such Award ut supra and also that the Defendant should pay unto the Plaintiffe 25l. at the house of J. S. absque hoc that they made the other Award only Upon which the Defendant did rejoyn and said That well and true it is that they made those Awards c. But they further awarded that the Plaintiffe should release unto the Defendant which he had not done And upon the Rejoynder the Plaintiffe did demur in Law And the opinion of the Court was without question That the Plea was a departure 19 H. 6. 19. But it was argued by Finch That the Replication was insufficient For the Plaintiffe ought not to have traversed as this Case is because that a man ought not to traverse a thing alleadged by Implication but ought to traverse that which is alleadged de facto upon which there may be an issue joyned And to prove the Traverse void the Case in 11 H. 6. 50. was put But the Exception was not allowed by the Court Another Exception was taken because the Award it self was void because it was to do a thing upon the Land of another man which he might not lawfully do And although the Arbitrators might award him to do the thing which is inconvenient yet they cannot award him to do a thing which is impossible and against the Law as in 17 E. 4 5. Two were bound to stand to the Arbitrement of J. S. of all Trespasses who awarded that the one should pay unto the other 40. and that he find Sureties to be bounden for the payment of it And by the opinion of the Justices the Award was void because he could not award a man to do that which did not lie in his power and he hath no means to compel the stranger to be bound for him But the opinion of the whole Court was against Finch For first the mony is to be paid apud domum J. S. and not in domo And it might be for any thing that appeareth that the said House is adjoyning to the High-way so as every Stranger might lawfully come unto it although he might not come into it without being a Trespassor But admit it be not adjoyning to the High-way yet he might come as neer unto the house as he could or he might get leave to come thither Secondly It was
Contracts made upon the Sea by them or their Factors And for the Antiquity of the Court v. t' E. 1. sitz t' Annuity 7 R. 2. t' trespas in Statham And so long as there hath been any Commerce and Traffique by this Kingdom so long there hath been a Court of Admiralty 3. He said The Court of Admiralty is no Court of Record in which a Writ of Error lieth 37 H. 6. acc ' 4. He considered the place And that he said was of things super altum mare only as appeareth by the Stat. of 13 R. 2. And he said That all the Ports and Havens within England are infra corpus Comitatus and vouched 23 H. 6. 30 H. 6. Hollands Case who was Earl of Exeter and Admiral of England who because he held plea in the Court of Admiralty of a thing done infra Portam de Hull damages were recovered against him of 2000l And he said That if the Court and Civil Law be allowed then he said the Customs of that Court ought to be allowed and he said That the Custome of the Civil Law is That in no case the Surety is chargeable when the Principal is sufficient And he agreed with the Doctors That the word Haeredes ought to be in the Stipulation because those beyond the Seas did not take any cognisance of the word Executors Also he said That they may take the body in Execution which are for the most part the Masters of the ships and Merchants who are transeuntes and therefore if they could not arrest their bodies they might perhaps many times lose the benefit of their suits But he said that in no case they might take forth Execution upon Lands And he said That if a Contract be made in Paris in France it shall be tryed either by the Common Law or by the Law of France and if it be tryed here then those of France shall write to the Justices of England and shall certifie the same unto them And he said That in Sir Robert Dudley's Case it was allowed for good Law where a Fine was levied and acknowledged in Orleance in France which was certified and allowed for good by the Common Law here in England But he said That the Civil Law could not determine of the Fine And to conclude he said That no Custome can be good which is against an Act of Parliament The principal Case was adjourned Mich. 13 Jacobi in the Kings Bench. 360. The MAIOR of YORK'S Case IN an Action of False Imprisonment brought It was holden by the whole Court 1. That no man can claim to hold a Court of Equity viz of Chancery by Prescription because every Prescription is against Common Right and a Chancery-Court is founded upon Common Right and is by the Common Law 2. It was holden per Curiam That the King by his Charter cannot grant to another any of the Customs of London But the like Liberties Franchises and Customs as London holdeth or useth the King by his Letters Patents may grant Quaere because the Customs in London are confirmed by Act of Parliament Mich. 13 Jacobi in the Kings Bench. 361. LAMBERT and SLINGBY'S Case A Man brought an Action of Debt as Administrator and took the Defendants body in Execution The Sheriffe suffered him to escape And afterwards a Will was found by which Will the said Administrator is nominated Executor The Question now was Whether he might maintain an Action against the Sheriffe for the Escape as Executor when he was but Administrator at the time and it was the opinion of the Court that the action of Debt against the Sheriff upon the Escape would lie and that the same Debt should be assets in the Executors hands And it was holden cleer That the Executor of an Executor might have Debt upon the Escape for that he is Executor to the first Testator and therefore à fortiori the Action in the principal Case would lie Mich. 13 Iacobi in the Common-Pleas 362. IT was holden by the Court That if a man present by Usurpation to my Advowson within six moneths I may have a Quare Impedit But after the six moneths past if the Church become void I cannot present but am put to my Writ of Right of Advowson And that if a man usurpeth upon the King he is put to his Quare Impedit within the six moneths And it was holden That a double Usurpation upon the King doth put him to his Writ of Right v. 22 24 E. 3 acâ— Pasch 13 Iacobi in the Kings Bench. 363. OWEN alias COLLIN'S Case JOhn Owen alias Collins of Godstow in the County of Oxford was indicted and arraigned of High-Treason for speaking these traiterous English words at Sandwich in the County of Kent viz. If the King be excommunicate by the Pope it is lawfull for every man to kill him and it is no murder For as it is lawfull to put to death a man that is condemned by a Temporal Judge so it is lawfull to kill the King if he be excommunicate by the Pope For that is the execution of the Law and this of the Popes supreme sentence The Pope being the greater includes the King being the lesser To which words he pleaded Not guilty And the Evidence to the Jury was the Major of Sandwich a Parson of the same Town and the Servant of the Town-Clark And this was the sum of the Evidence That the said Owen coming from S. Lucar in Spain spake the said words to divers persons who told them to the Major whereupon the said Major had conference with Owen and then he spake the like words unto the Major and thereupon the Major tendred unto him the Oath of Allegiance which he refused to take and he put his hand to awriting containing the said words as his opinion and further said That if he had twenty hands he would put them all to it The Exception which Owen took unto the Evidence given against him was That he did not speak of the King of England But the same was said to be a simple Exception For before he spake the words to the Major the Major asked him if he were an Englishman or not To which he answered that he was and then after he spake the said words to the Major which must necessarily have reference to the speeches which were before betwixt him and the Major And Cook Chief Justice said That if he had not spoken of the King of England but of the King generally yet it had included the King of England The matter of his Indictment of Treason was not grounded upon the Statute of Supremacie but upon the Common-Law of which the Statute of 25 â— 3. is but an Explâ—nation which was his intent to compass the death of the King And he said That notwithstanding that the words as to this purpose were but conditional viz. If he were Excommunicate yet he said it was High-Treason For proof of which two Cases were cited The Duke of Buckingham in
disseised and the Disseisor levieth a Fine with proclamations and five years passe and afterwards Tenant in tail dyeth there the issue in tail is barred for there after the Fine levied the Tenant in tail himself had right so as the issue in tail was not the first to whom the Right did accrue after the Fine levied C. 3. part 87. Com. 374. a. When Ralph Bigot made the Feoffment 6 H. 8. Francis Bigot had a Right by his own Feoffment 21 H. 8. his Right was extinguished The second Objection was upon the Form of pleading in a Formedon viz. Post cujus mortem discendere debet to him viz. the issue Then the Ancestor had such a Right which after his death might have discended to his issue Then that proveth that the Ancestor by his Feoffment hath not given away all the Right I answer The form is not Post cujus mortem but Per cujus mortem and the Post cujus mortem discendere debet is not traversable and therefore it is but matterof form and not of substance Old Entres 240. One dum non fuit compos mentis maketh a Feoffment he shall not avoid the Feoffment because that the Law doth not allow a man to stultifie himself C. 4. part 123. But his heir after his death may avoid the Feoffment of his Ancestor for de ipso discendit jus although the Father had not a Right in his life It was thirdly objected out of C. 4. part 166. b. where it is said That if an Ideot maketh a Feoffment the King shall avoid the same after Office found I answer That the Book it self doth cleer the objection For it is in regard of the Statute of Prerogativa Regis cap. 9. Ita quod nullatenus per eosdem fatuos alienentur c. and not in respect of any Right which the party hath who maketh the Feoffment By the Common Law Tenant in tail viz. He who had a Fee-simple conditional had not any right after his Feoffment Then the Act of West 2 cap. 1. makes such a Fee an Estate in tail and provides for the issue in tail for him in the Remaindor or in Reversion but not for the party who made the Feoffment or Grant for a Grant of Tenant in tail is not void as to himself Magdalen-Colledge Case A Lease by a Parson is good against himself but voidable against his Successor And so the same is no Exception Discendit jus post mortem c. The fourth Objection was That although Tenant in tail had made a Feoffment yet he remained Tenant to the Avowry of the Donor and therfore some right of the old estate tail did remain in him I answer 5 E. 4. 3 a. 48 E. 3. 8. b. 20 H. 6. 9. 14 H. 4. 38. b. C. 2. part 30. a. The matter of the Avowry doth not arise out of the Right or Interest which a man hath in the Land but out of the Privity As when the Tenant maketh a Feoffment he hath neither right nor interest in the Land yet the Lord is not compellable to avow upon the Alienee before notice In a Precipe quod reddat the Tenant alieneth yet he remaineth Tenant as to the Plaintiffe and yet he hath not either a Right or any Estate as to the Alienee The fifth Objection was upon the Statute of 1 R. 3. cap. 1. All Feoffments c. by Cestuy que use shall be effectual to him to whom it was made against the Feoffor and his heirs I answer The words of the Statute are to be considered All Feoffments c I desire to know how this affirmative Law doth take away the power of the Feoffees And the Feoffees are bound by the Feoffment of Cestuy que use and are seised to the use of such Alienees 27 H. 8. 23. b. by Fitzherbert If Cestuy que use enter and maketh a Feoffment with warrantie c. but there are not words that the old rights are given away The Feoffees to use before the Statute of 1 R. 3. c. 1. might only make Feoffments but after that Statute Cestuy que use might also make Feoffments of the Lands And so the Statute of 1 R. 3. did not take away the power of the Feoffees for they yet may make Feoffments but it did enlarge the power of Cestuy que use Com. 351 â—52 Then the Question further riseth If Francis Bigot had any Right in the Tail which might be forfeited by the Statutes by 26 H. 8. and 31 H. 8. A particular Act made for the Attaindor of the said Francis Bigot From the time of West 2. cap. 1â— untill the Statute of 26 H. 8. cap. 13. there were many Bills preferred in Parliament to make Lands which were entailed to be forfeited for high Treason but as long as such Bils were unmasked they were still rejected But Anno 26 H. 8. then at a Parliament a Bill was preferred That all Inheritances might be forfeited for Treason so that as under a vail lands in tail were forfeited for Treason which was accepted of The Statutes of 26 H. 8. 31 H. 8. are not to be taken or extended beyond the words of the Statute which are That every Offender hereafter lawfully convict of any manner of high Treason by Presentment confession Verdict or Process of Outlawry shall forfeit c. It doth not appear that Francis Bigot was attainted in any of these wayes For the Inquisition is That he was Indicted and convicted but Non sequitur that he was convict by any of those wayes viz. Verdict Confession or Outlawry And one may be attainted by other means 4 E. 4. in Placito Parliamenti Mortimer was attainted by Parliament 1 R. 2. Alice Percy was attainted by Judgment of the Lords and Peers of the House of Lords in Parliament It was objected That after an Indictment Verdict ought to follow I answer Non sequitur for it may be without Verdict viz. by standing mute And then the Statute of 26 H. 8. doth not extend unto it C. 3. part 10 11. Admit it were an Attaindor within the Statute of 2â— H. 8. yet Francis Bigot had not such lands which might be forfeited C. 3. part 10. For this Statute doth not extend to Conditions or Rights And C. 7. part 34. this Act of 26 H. 8. doth not extend to Rights and Titles And it is cleer that Francis Bigot had not any Estate within the letter of the Act. It was objected That if we have not set forth the full Title of the King in the Monstrans de Droit then is the Monstrans de Droit naught and void I answer 9 E. 4. 51. 16 E. 4. 6. I find no book that in a Monstrans de Droit we should be put to observe that Rule For a Petition were a going about The Statute of 2 E. 6. cap. 6. gives the Monstrans de Droit 16 E. 4. 7. If a Petition be void for want of instructing the King and if all his Title be not set forth in it
then the Court is to abate the Petition but after Judgment to find such a fault he must have a Scire facias and not a new Petition and in our Case there was none who gave in such matter for the King Now I come to the Statute of 31. H. 8. The particular Act for the Attainder of Francis Bigot and that he should forfeit all such Lands c. Conditions Rights c. in Fee and Fee tail saving c. and as the lands of Francis Bigott stood stated at the time of the making of this Act of 3. H. 8. the Statute did not extend to him to make him forfeit any thing In the Statute of 33. H. 8. Cap. 20. there were as many words as in this Statute of 31. H. 8. and many Cases upon the Statute of 33. H. 8. are adjudged upon the words shall lose and forfeit There is a difference betwixt an Act of Assurance and an Act of Forfeiture If the words be That the King shall enjoy and have it is then an Act of Assurance and the lands are given to the King without Office but by an Act of Forfeiture the Lands are not in the King without Office found Exceptio firmat regulam but our Case is out of the Rule Savings in Acts of Parliaments were but of late days 1. E. 4. there was a private Act A Petition was preferred against divers in Parliament for sundry misdemeanours and it was Enacted that they should forfeit unto the King and his heirs c. in that Act there was no exception of saving for it was but a forfeiture of their Rights and Savings were but of late times Trin. 8. H. 8. Rot. 4. A Petition of Right in the Chancery upon that was a plea which was after the Attainder of the Duke of Suffolk That the Duke did disseise him it was shewed that the Attainder was by Parliament and he shewed no saving to be in the Statute in the Petition and yet it was well enough Com. 552. Wyat Tenant in tail of the Gift of the King made a Feoffment and by Act of Parliament 2 Mariae was attainted of Treason by which he was to forfeit c. as in our Case I answer That within two years after that Judgment upon solemn argument it was adjudged contrarie Com. 562. It was objected that in that Case a Writ of Error was brought Com. 562. and that the Judgement was affirmed in the Case of Walsingham I answer that the same was by reason of the Plea in Barr And Com 565. there Plowden confesseth that the Judges were not agreed of the matter in Law and the Lands in question in Walsingams Case do remain with Moulton and at this day are enjoy'd contrary to the Judgment given in Walsinghams Case It was objected That although this Act of 31. H. 8. was made after the Attainder yet that it should relate to all the Lands which Francis Bigot had at the time of the Treason committed I answer That this Act of 31. H. 8 is but a description what Lands he shall forfeit viz. all the Lands which he had at the time of the Treason committed The second Point is upon the Remitter of Roger Ratcliff before the Inquisition for there was a discent to Roger Ratcliff When Tenant in Tail is attainted of Treason his blood is not corrupted C. 9. part 10. Lumleys Case And the Statute of 33. H. 8. is the first Statute which vests Lands forfeit for Treason in the King without Office found So as according to the Lord Lumley's Case C. 3. part 10. before this Statute of 33 H. 8. the Land did discend to the issue in tail The Rule of Nullum tempus occurrit Regi is to be meant for the preserving of the Kings Right but not to make the King to do wrong Com. 488. there the Remitter is preferred before the King 49. E. 3. 16. there the Devise of a Common person was preferred before the Right of the King 3. H. 7. 2. the Lord Greistock's Case The Dean of York did recover against him and before Execution the Lord died his heir within age the Dean shall have his Execution notwithstanding that the King hath right to have the Ward A fortiori a Remitter shall be preferred before the Kings Title C. 7. part 28. The Rule Nullum tempus occurrit Regi is to be intended when the King hath an Estate or Interest certain and permanent and not when his Interest is specially limited when and how he shall take it and not otherwise The third Point was Whether Ratcliff hath brought his proper Action The words of the Act of 2 E. 6. cap. 8. which giveth the Monstrans de Droit are to be considered A Remitter is within the words of the Act. Divers Errors were assigned by the other side for matter of Form 1. Because the Venire facias want these words tam milites quam alios Sheffield being a Noble man and a Peer of the Realm It appeareth by the Register 7. that the same was the ancient Form in every common persons Case but of late that Form was left 2. Admit that it were a good Exception then it ought to have been taken by way of Challenge as it appeareth 13. E. 3. Challenge 115. Dyer 107. 208. 3. The Statute of 35. H. 8. Cap. 6. makes a new Law and prescribes a Form Precipimus c. quod Venire facias coram c. 12 Liberos Legales homines c. and then if it ought to be by the Register tam milites quam alios yet here is a new Statute against it And by the Statute of 2. E. 6. Cap. 32. this Statute of 35 H. 8. is made perpetual And by the Statute of 27. Eliz. Cap. 6. the Statute of 35. H. 8. is altered in parvo and augmented in the worth of the Jurors and by the Statute of 18. Eliz. Cap. 14. It is Enacted That after Verdict c. the Judgment thereupon shall not be stayed or reversed by reason of any default in Form or lack of Form or variance from the Register The second Error assigned was because that there are two Venire facias and two Distringas after that Issue was joyned The Lord Sheffield sueth unto the King to have the first Venire facias and first Distringas quashed and it was quashed with Ratcliff's consent Secondly admit there were two Venire facias yet it ought to be intended that the proceedings was but upon one of them and that the best M. 17. Jacobi in the Common Pleas Bowen and Jones's Case In Error upon a Recovery in Debt there were two Originals certified and there the one was good and the other naught the Judges did take it that the Judgment and proceedings were upon the good Original and the Judgment was affirmed in the Kings Bench M. 15 H. 8. Rott 20. the same Case Two Originals one bearing date after the Judgment the other before the Judgment and upon a Writ of Error brought the
the possession is bound by the Judgment of Attaindor and the Act of Parliament 5 H. 7. 31. 7 H. 7. 15. 16 H. 7. 8. A discent of land shall not make a title against the King or any other who hath the land by an Act of Parliament But then in our Case If there should be a Remitter yet the same is overreached by the Office 〈◊〉 part 10. before the Statute of 33 H. 8. cap. 20. there ought to have been an Office found in the Case of Attaindor of Treason Br. Cases 103. Brook Office Devant c. 17. I do not mean an Office of intitling but an Office declaratory of a conspicuous title C. 5. part 52. There are two manner of Offices One which vesteth the estate and possession of the land c. in the King Another which is an Office of Instruction and that is when the estate of the land is lawfully in the King but the particularity thereof doth not appear upon record And the Office of Instruction shall relate to the time of the Attaindor not to make Queen Elizabeth in our Case in by discent but to avoid all meâ—ne Incombrances And is not this Remitter an Incombrance And for that purpose the Office shall relate For in things of Continuance Nullum tempus occurrit Regi C. 7. part 28. For so the rule of Nullum tempus c. is to be understood of a thing of Continuance and not a thing unica vice v. Fitz. Entre Congeable 53. Trav. 40. where it is said Where the King hath cause to seise for the forfeiture of Tenant for life if the Tenant for life dyeth the Reversion may enter for in that case Tempus occurrit Regi and the King cannot seize after the death of the Tenant for life 35 H. 6. 57. There is no discent against the King and if there be no discent then there is no Remitter The consequence of all this is That the Office doth relate to the Right And that the Monstrans de Droit doth not lie And the want of Office found for all this time was the fault of the Kings Officers and shall not prejudice the King But if the Office should not relate then the Monstrans de Droit would lie because then the King was in but by one single matter of Record We shew in the Office 33 Eliz. That there issued forth a Commission directed to certain of the Privy-Councel to enquire of the Treason and if Francis Bigot upon the Treason were Indicted And in our Case we shew immediately another Commission was directed to the Lord Chancellor and the two Chief Justices c. to arraign Francis Bigot And all that is confessed by Ratcliffe himself viz. modo forma And therefore the Objection which Glanvile made was frivolous viz. That it did not appear that Francis Bigot was attainted by Verdict by Confession or by Outlawry And so he concluded That for these causes the Judgment given in the Court of Common-Pleas ought to be reversed George Crook argued for Ratcliffe and he prayed that the Judgment might be affirmed I will argue only these points following 1. That Francis Bigot had not so much as a right of Action at the time of his Attaindor for he had not any right at all 2. Admit that he had a right of Action If this right of Action be given to the King by the said Statutes of 26 31 H. 8. It was objected That the right being clothed with a possession that the same is given to the King But I will prove the contrary 3. When Francis Bigot being Tenant in tail and being attainted and executed for Treason and then Katherine his wife dyeth being one of the Donees in tail 21 H. 8. and the lands discend to Ratcliff If the Office afterwards found shall relate to take away the Remitter I say it doth not but that his Remitter doth remain to maintain his Monstrans de Droit and he is not put to his Petition The chief point is What right Francis Bigot had at the time of his Attaindor 1. When Ralph Bigot being Tenant in tail 6 H. 8. made a Feoffment in Fee what right remained in Francis his Son The right is in abeyance viz. in nubibus that is in custodia Legis And then Francis Bigot had no right of that entail 21 H. 8. when he made the Feoffment Com. 487. There Jus is divided viz. Jus recuperandi Jus in randi Jus habendi Jus retinendi Jus percipiendi Jus possedendi but here Francis Bigot had not any of these rights Com. 374. if the Discontinuee of Tenant in tail levieth a Fine with proclamations and five years passe and Tenant in tail dyeth the issue in tail shall have other five years because he is the first to the right 19 H. 8. 7. C. 7. part 81. If Donee in tail maketh a Feoffment in Fee in rei veritate the Donee hath not jus in re neque ad rem C. 3. part 29. Litt. 649. There it appeareth that the right to an estate tail may be in abeyance Com. 552. Walsinghams Case There the King gave land in tail to Wyat who made a Feoffment unto Walsingham Afterwards Wyat was attainted of Treason and there the estate tail of Wyat was forfeited but the cause there was because that the reversion was in the Crown and so no discontinuance by his Feoffment because that the reversion was in the Crown In our Case no right of the estate tail was in Francis Bigot after the Feoffment unto his own use but the right is in abeyance It was objected That the Writ of Formedon is Discendit jus and the Monstrans de Droit was so I answer It is so in point of form in the Writ but not in substance C. 7. part 14. Tenant in tail makes a Lease for life and Tenant for life dyeth Now he hath an ancient right and the Donor may avow upon the Tenant in tail notwithstanding his Feoffment but that is by reason of privity and not by reason of any right he hath Jus recuperandi did discend to the issue in tail viz. Francis Bigot 21 H. 8. He who hath a right of Action giveth the same away by his Livery and Feoffment as appeareth by the Cases put in C. 1. part 111. It was objected That Cestuy que use was an Attorney or Servant therefore he doth not passe his own right for he cannot make an Attorney to make Livery and 9 H. 7. 26. was cited to be adjudged so But it is adjudged to the contrary M. 25 H. 8. in the Kings Bench rot 71. betwixt the Bishop of London and Kellet as it appeareth in Dyer 283. and Bendloe's Reports and C. 9. part 75. For there it is expresse that Cestuy que use may make a Letter of Attorney to make Livery which proves that he makes not the Feoffment as a Servant but as Owner of the Land It was objected That Cuesty que use was as an Executor but that I deny 49
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
and for these causes he prayed Judgment for the Defendant Observe Reader the Argument of Calthrope he doth not speak to the point where part of the thing or Contract is upon the Sea and part upon the Land as it was urged by Andrews who argued on the other side The Case was adjourned Pasch 3 Caroli rot 362. in the Kings Bench. 475. IT was cited to be adjudged That if a man purchase the next Avoidance of a Church with an intent to present his son and afterwards he present him that it is Symony within the Statute Pasch 3 Caroli in the Kings Bench. 476. SUTTON the Chancellor of Gloucester's Case IN the Case of Sutton who was Chancellor of Gloucester and put out of his place for insufficiency in the Ecclesiastical court Trotman moved for a Prohibition to the Spiritual Court and said that the Bishop had power to make his Chancellor and he only hath the Examination of him and the allowance of him as it is in the Case of a Parson who is presented to the Bishop and said that if his sufficiency should be afterwards reexamined it would be very perilous Doddridg Justice If an Office of Skill be granted to one for life who hath no skill to execute the Office the grant is void and he hath no Frank-tenement in it A Prohibition is for two causes First to give to us Jurisdiction of that which doth belong unto us And secondly when a thing is done against the Law and in breach of the Law then we use to grant a Prohibition Jones Justice Brook had a grant of the Office of a Herald at Arms for life and the Earl Marshal did suspend him from the execution of his Office because he was ignorant in his profession and full of Error contrary to the Records and it was the opinion of the Justices that because he was ignorant in such his Office of Skill that he had no Freehold in the Office In the Principall Case the Prohibition was denyed And afterwards Sutton was put out of his Office by Sentence in the Spiritual Court for his insufficiency Pasch 3 Caroli in the Kings Bench. 477. SYMM'S Case TWo men having speech together of John Symms and William Symms one of them said The Symmses make Half-crown peeces and John Symms did carrie a Cloak-bag full of clippings And whether the Action would lie was the Question because it was incertain in the person For he did not say these Symmses but The Symmses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Star-Chumber one having speech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lie for two causes First because the words These was uncertain in the person And secondly it was incertain in the thing For it might be that they had Authority to do it as in Mills Case 13 Jac. in the Kings Bench Thou hast Coyned Gold and art a Coyner of Gold Thirdly a Cloakbag of clippings that is also uncertain for it might be clippings of Wooll or other things or it might be clippings of Silver from the Goldsmith For the Goldsmith that maketh Plate maketh clippings And fourthly It is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lie Pasch 3 Caroli in the Kings Bench. 478. WHITTIE and WESTON'S Case AN Action of Debt was brought upon the Statute of 2 E. 6. and the Plaintiff declared That at the time of the Action brought he was Parson of Merrel and that Weston the Defendant did occupie such Lands and sowed them with corn Anno 21 Jac. and that he did not fet forth his Tythe-corn c. The Defendant pleaded in barr of the Action That W. W. Prior of the Hospital of St John of Jerusalem was of the Order of Hospitalers c. and that he held the said Lands free from the payment of Tythes and that the Priory came by the Statute of 32. H. 8. to the King By vertue of which Statute the King was seised thereof and that the same descended to Queen Elizabeth who granted the Lands unto Weston to hold as amply as the late Prior held and that he was seised of the Lands by vertue of that grant Et propriis manibus suis excolebat Upon this Plea the Plaintiff did demurr in Law Noy argued for the Plantiff There are three points in the Case First If these Lands the possessions of the Hospitalers of St John which they held in their own hands were discharged of Tythes Secondly If there be any thing in the Statute of 32 H. 8. by which the Purchasor of the King should be discharged Thirdly Admitting that it shall be a discharge if the Defendant hath well entitled himself to such discharge or Priviledg First it is not within the Statute of 31 H. 8 cap. 13. for that Statute did not extend to the Order of St John Secondly the Statute of 31 H. 8. cap. 13. doth not discharge any but what was then dissolved Thirdly The Statute of 32 H. 8 cap. 24. gives the possessions of the Hospitalers of St Johns to the King and not the Statute of 31 H. 8. Note that the Defendant did recite the branch of the Statute of 31 H. 8. cap 13. That as well the King his heirs and successors as all and every such person and persons their heirs and assignes which have or hereafter shall have any Monasterie c. or other Religious or Ecclesiastical houses or places shall hold c according to their Estates and Titles discharged and acquitted of the payment of Tythes as freely and in as large and ample manner as the said Abbots c. had or used Also he recited the Statute of 32 H. 8. cap. 7 which Enacts that none shall pay Tythes who by Law Statute or Priviledg ought to be discharged The Statute of 31 H. 8. recites that divers Abbies c. and other Religious and Ecclesiastical houses and places have been granted and given up to the King The Statute enaâ—ts that the King shall have in possession for ever all such late Monasteries c. and other Religious houses and places c. And also enacts that the King shal have not only the said Monasteries c. but also all other Monasteries c. and all other Religious and Ecclesiastical houses which hereafter shall happen to be dissolved suppressed renounced relinquished forfeited given up or by any other means come to the King and shall be deemed adjudged vested by Authority of this present Parliament in the very actual possession and seisin of the King for ever in the state and condition they now be Vi. The Statute And shall have all priviledges c. in as ample manner and form as the late Abbots c. had held or occupied c. The Question then is Whether the men of the Hospital of St John at Jerusalem are intended to be within the
said Statute of 31 H. 8. And I conceive that they are not It doth not appear in the pleading that the Priory of St John was an Ecclesiastical House therefore it ought to have been averred It is true to plead that such a man hath entred into Religion is intended that he is a person dead in Law They were never Ecclesiastical nor so accounted they must be both Religious and Ecclesiastical who are within the Statute of 31 H. 8. For the said Statute doth not extend to Religious houses unless they be Ecclesiastical Tryal 99. proves that they were Religious 21 H. 7. 7. And the Statute of Templers 17 E. 2. do shew that they were Canonized which is admitted unto a Rule of their own Law and not that they were made Saints or that they were Ecclesiastical 1 E. 3. 7. Nonability 4. They were dead persons in Law Feoffments 68. proves that they were religious but whether they were Lay or Ecclesiastical I have not read In the difference of Summons to Parliaments unto the Templers the Summons is Vobis mandamus in fide legeantiâ—s but the Summons to a Spiritual Lord is in fide electione and so was the Summons to the Prior of St Johns of Jerusalem but that was because he held in Frankalmoign but that doth not prove him to be Ecclesiastical for first they exercised themselves in Arms It was part of their Order armis se exercere and that is against the Rule of the Common Law to meddle with blood Secondly They used no Imposition of hands but only a Robe nor had they so much Ceremony as a Knight of the Bath and yet the Knights of the Bath are not Ecclesiasticall So there is nothing in their Creation or Order that makes them Ecclesiastical For they were Lay-Monks of the Order of St Anthony The Jesuites have Lay-Brethren and not Ecclesiastical 44. Ass 9. There the Defendant pleaded in barr That the Prior was a Lay-man and so not under any Rule and it is there admitted that he was a Lay-man and yet that he might be Prior and bring the Action in his own name and not as Prior with his brethren which proves that the residue were dead persons in Law If there be professions alledged in one of the Hospitals of St John of Jerusalem how shall it be tryed By the Country Tryal 99. Profession was alleadged in the Plaintiff who was a Knight of the Order of the Templers and it was commanded to certifie it And the Bishop could not enquire of it because the Order of a Knight Templer was exempted by the Pope But Tryal 98. there it was certified by the Bishop yet all our books are contrary to it 2. R. 3. 4. Si profissio allegata sit in quodam militi Sancti Johannis Jerusalem quia immediate sub Papa sunt non habere cuiscribere possunt c. 21 H. 7. 7. Selden 1 21. in his History of Tythes that they were accounted no part of the Clergy but meerly Lay. With us they were accounted Lay and therefore it is not material what they were accounted of in other places A Colledg is a Lay Corporation If they be disseised an Assise must be brought The Statute of 1. and 2. Philip and Mary is That men might devise to spiritual Corporations notwithstanding the Statute de terris ad manum mortuum nonpoâ—â—nd 〈◊〉 or any other Statute to the contrary Dyer 254. There a Devise was unto a Colledg and Grammar-School and holden a good Devise because the Statute of Philip and Mary ought to be favourably expounded being for the benefit of the Corporation I take another reason from the manner of payment of Tythes Ecclesiastical persons payed Tythes but no Tythes were paid by the Hospitalers of St Johns of Jerusalem The Statute of 27 H. 8. dissolves Abbies c. but doth not relate to any formerly given up c. and the reason was because they were but petty Abbies The Statute of 31 H. 8. dissolves none but recites that whereas divers have given up c. or were to be given up but shews no reason for divers inquisitions issued forth to enquire of their Lands but the Statute of 32 H. 8. doth not shew any such reasons but other reasons because that Rodes was taken away and that they held of the Pope And if they were dissolved by the Statute of 31 H. 8. then what need a Statute the next year after viz 32 H. 8. to dissolve the Corporation By the Statute of 26 H. 8. cap. 3. the King hath the first Fruits and Tenths of all that shall be promoted to any Benefice or promotion spiritual This doth not extend to St John of Jerusalem and therefore afterwards in the same Statute it is Enacted That every one which shall be elected or by other means appointed to the Dignity of the Prior of St Johns of Jerusalem shall before their real and actual entrie into the Dignity or medling with the profits satisfie the King c. Now if they were intended in the words Spiritual promotion it was in vain a new to enact for them The Act of 32. H. 8. extends to Ireland and so doth not the Statute of 31 H. 8. the Statute of 31 H. 8. extends only to Eccelesiastical and Religious so they were not intended within the Statute of 31 H. 8. Next If they were intended within the Statute of 31 H. â— then the Statute of 32 H. 8. gives them absolutely by name to the King The Statute of 31 H. 8. gives nothing to the King but those that are or were to be given up forfeited surrendred or otherwise given up but gives nothing to the King but by the help of some other Act viz. forfeiture surrender or otherwise given up The word Otherwise never intended Dissolution by Act of Parliament for that is paramount the particulars recited The Statute of Malebridg cap. 30. n. Provisum est quod si depredationes vel rapini aliqui fiâ—nt Abbatibus c. vel aliis Prelatis Ecclesiasticis c. That Statute never intended to extend to Bishops who are paramount and superior to Abbots The word aliis will bear no such sense to make the superior to be intended when as the inferior is recited The Statute of 13 Eliz. recites That no Colledg Dean and Chapter Parsons Vicars c. may make a new Lease unless within a year of the end of the Lease in being Now a Bishop is superior and above these particularly named and may make concurrant Leases so here the word Otherwise doth not intend that Otherwise to be by Act of Parliament and to extend to greater then the particulars recited The Statute of 32 H. 8. sayes that the Corporation shall be dissolved and void but the Statute of 31 H. 8. doth not say that the Corporation shall be dissolved and void The Statute of 32 H. 8. sayes that the Corporation and possessions shall be in the King by vertue of that Act then not in the King
was not found and so the King was not entitled to rights and priviledges and by consequence so was not his Pattentee 2. It did not appear that the Councel of Lateran 15 Johannis did extend to these Orders which was said to have been created 17 E. 3. whereas indeed it was created in the time of Henry the 1. Regularly this priviledge is not transferrable for it is ratione Ordinis As when the King makes a Duke and gives to him possessions those possessions annexed to the Dukedom are not transferrable over but by special Act of Parliament 35 H. 6. 36. Moile There if there had been special words in the Act of Parliament it had been Frankalmoigne This Priviledge is transferred to the King by the Act of 32 H. 8. and that Statute requires no aid of Regular or Ecclesiastical persons Secondly the words are special And all other things of theirs This Case opposeth not the Bishop of Canterbury's Case C. 3 part For that refers to the Statute of 1 E. 6. which had not so large words The intent of an Act shall be taken largely and beneficially to inlarge the Kings possessions as the grants of the King shall be taken largely and beneficially for the King There is a difference betwixt this Statute of 32 H. 8. and the Statute of 27 H. 8. The copulative words of the Statute of 27 H. 8. are To have all Rights and Interests and Hereditaments C. 11. part 13. pro omnibus demandis c. there the demand shall extend to Temporal demand so All rights and Interest and Inheritance shall be construed All temporal rights c. But the Statute of 32 H. 8. is larger viz. Of what name and nature soever If by the words of the Statute of 31 H. 8. Priviledges Tythes had been given to the King without especial provision after made then what needed the special Clause after was the Objection which hath been made I answer The special Clause was necessary For in pleading otherwise he ought to have shewed what Priviledge and Discharge it was in particular and so the Clause was added for the case of pleading C. 9. part The Abbot of Strata Mercellos case there it is said That if a man plead to have such priviledges as such a one had he ought to shew in particular what those priviledges were But this provision in the Statute of 31 H. 8. was made for the benefit of pleading The Statute of 17 E. 2. which gave the Tythes to the Hospitalers give them by the word of Priviledges for they had their possessions as it were by a new purchase Cook Entries 450. there the Case much differs from this so then the general word Priviledges doth extend to Tythes 14 H. 8. 2. By a grant of All trees Apple-trees will not pass yet if it be of all trees cujuscunque generis naturae nominis aut qualitatis then they will pass C. 3. part 81. By grant of all goods Apparel will not pass Here are special words in the Statute cujuscunque naturae nominis c. Nominla sunt symboa rerum And then call them what you will they are given to the King and intended to be transferred to the King and so there needs no special provision for the discharge of the Tythes For to say that the Priory was of the Order of the Cistertians is sufficient Admit then that the King shall have the Tythes as I have argued he shall then his Pattentee shall have them It is a real discharge in the King and not a discharge in respect of his person only Priviledges of discharge may be transferred as well as Priviledges of profit Then the question further is Whether they of S. Johns of Jerusalem were Ecclesiastical They were Regular as appeareth by the Statute of 32 H. 8. for that saith that they shall be free from Obedience Trin. 8. Jacobi in the Common-Pleas Bowyers case Whore Cook Nichols Warburton and Winch did agree that they were Ecclesiastical Priests The Prior had Parsonages and none could have Parsonages but Ecclesiastical persons 3 E. 3. 11. They had Appropriations which could not be unto Lay-men 22 E. 4. 42. There a Writ of Annuity was brought against the Prior of S. Johns of Jerusalem and it was ruled there that he ought to be named Parson which proves that he was Ecclesiastical 26 H. 8. cap. 2. there it is said That he shall pay First-fruits as other Parsons which proves that he was Parson 42 E. 3. 22. there they are called Ecclesiastical 35 H. 6. 56. they were seised in the right of the Church Linwood lib. cap. 47. de Judiciis That they were Ecclesiastical It was objected that Knight-hood cannot be given to Ecclesiastical persons and they were Knights Popham once Chief Justice of this Court said That he had seen a Commission directed unto a Bishop to Knight all the Parsons within his Diocese and that was the cause that they were called Sir John Sir Thomas and so they continued to be called untill the Reign of Queen Elizabeth Jones and Dodderidge Justices They were Ecclesiastical persons although they were divided from the jurisdiction of the Bishop The Case was adjourned to be further argued Pasch 3 Caroli in the Kings Bench. 479. LANGLEY and STOTE's Case IN an Ejectione firme the Plaintiff declared of an Ejectment 26 Martii 23 Jacobi contra pacem dicti Domini Regis nunc which could not be because King James dyed the 27 of March and so it was not contra pacem Caroli Regis 8 H. 4. 21. An Appeal of Maheim was brought and the Plaintiff declared That he meyhemed in the time of the King that now is and the Writ did suppose the same to be in the time of King R. 2. And for that cause it was adjudged Quod nihil capiat per Breve Pasch 3 Caroli in the Kings Bench. 480. MUTLE and DOE's Case DEbt was brought upon a Bond aud the Plaintiff in his Declaration doth not say hic in Curio prolat It was holden by the Court That although it be in the election of the Defendant to demand Oyer of it yet the Plaintiff ought to shew it The Judgment also was entred Concessum est whereas it ought to have been Ideo consideratum est And for these causes the Judgment was reversed So was it adjudged also the same Term in this Court in Barret and Wheeler's Case Pasch 3 Caroli in the Kings Bench. 481. Serjeant HOSKIN's Case HE was Indicted for nor paving of the Kings high-way in the County of Middlesex in S. Johns street ante tenementaâ— sua And in the Indictment it was not shewed How he came chargeable to pay the same Nor was it shewed that he was seised of any house there nor that he dwelt there nor was it averred that he had any Tenement there The opinion of the Court was that the Indictment was incertain for it might be that his Lessee dwelt in the house and so the Lessee ought to have repaired it and
but doth not shew by whom And shewed that the Lands inclosed out of which the Inhabitants had their Common And said That there were divers other Grievances to the Inhabitants of Tue but did not shew by whom they were nor what they were and shewed that at a Parliament the Defendant did deliver such a Writing to the Prince as one of the Peers of Parliament supposing that the grievances were set upon the Inhabitants by the Plaintiff by reason the Plaintiff occupied the Lands so inclosed and for Reformation thereof that he delivered the Writing to the Prince Absque hoc that he did deliver it in any other manner And upon this Plea in Barr Tanfield the Plaintiff did demurr in Law Noy for the Plaintiff said That the Defendant complains of wrong and doth not shew any wrong to be done by Tanfield the Plaintiff It is a grievous scandal to deliver this Writing for it is a scandalous Writing and no Petition for therein he doth not desire any Reformation but complains generally Betwixt John Frisel and the Bishop of Norwich The Case touched in 21 E. 3. was That Frisel brought a Prohibition to The Bishop and the Bishop excommunicated him for the delivering of it unto him The Bishop was fined And there it is said As Reverence is due to the King so it is due to his Ministers Our Action is brought at the Common Law and not upon the Statute of R. 2. de scandalis magnatum M. 18 E. 3. Rot. 162. Thomas Badbrook sent a Letter to Ferris one of the Kings Councel the effect of which was That Scot Chief Justice of the Kings Bench and his Companions of the same Bench would not do a vain thing at the Command of the King yet because he sent such a Letter to the Kings Councel although he spake no ill yet because it might incense the King against the Judges he was punished for it might be a means to make the King against his Judges We are to see here if the Defendant hath made any good Justification If there were no wrong then there was no cause to complain Secondly If he had demeaned himself as he ought he ought to have had the wrong if there were any reformed and that he did not do 11 H. 4. 5 H. 7. A voice of Fame is a good cause for to Arrest a man of Felony but then some Felony ought to be committed 7 H. 4. 35. A certain person came and said to one that there were certain Oxen stoln and that he did suspect such a one who he arrested upon the suspition It is a good cause of Justification if any Oxen were stoln but if no Fellony was committed if one be arrested upon suspicion that he hath committed Fellony it is not good If Fellony be done then a good cause to suspect him but if no Fellony be done nor he knoweth nor heareth of any Fellony committed there is no cause for to suspect that the partie hath committed Fellony but there ought to be suspition that the partie hath committed such a particular Fellony Where Fellony is committed certainly one may be arrested upon suspition but unless a Fellony be committed he cannot be arrested For where no Fellony is committed at all he shall not be drawn to a Tryal to clear himself of the suspition but if a Fellony be certainly committed and he be arrested upon the suspition there he being forced to answer to the Fellony he may clear and purge himself of the infamy upon his tryal and so the infamy is not permanent as in case when no Fellony is committed for there he may bring his Action upon the Case Here he saith that parcel of the Waste is inclosed and doth not shew what parcel so as no certain issue can be taken upon it Moor and Hawkins Case in an Ejectione firme It was alledged that he entred into parcel of the Land and the Land was alledged to lie in two several Towns and it was not good because no certain issue could be thereupon He saith the same was inclosed but doth not shew by whom it was inclosed viz. whether by the Feoffor or Tanfield the Feoffee he complains of many grievances but doth not shew what they are and he ought not to be his own Judge Secondly He hath not demeaned himself as he ought for he hath not desired in the Letter any Reformation but only he complains of the oppression of Tanfield He ought to have directed the Writing unto the Parliament and he directed the same unto the Prince by name In the Letter he doth not shew that Tanfield the Plaintiff did oppress but that the Plaintiff was an oppressor but he doth not shew in what thing The Case was adjourned Trin. 21 Iacobi in the Kings Bench. 487. SCOT'S Case PRoborum legalium hominum is omitted in the Certificate of an Indictment by the Clark of the Sessions Curia If it had been in Trespass the omission of the said words had vitiated the Indictment but not in Case of Felony Quaere the reason Trin. 21 Iacobi in the Kings Bench. Intratur M. 19 Jac. Rot. 322. 488. CROUCH and HAYNE'S Case IN a Writ of Error the Record is removed out of the Common Pleas The Defendant pleads in nullo est Erratum and a Demurrer is joyned and the Defendant afterwards alledgeth Diminution of the Original 7 E. 4. 25. The Assignement of Errors is in lieu of the Declaration 4 E. 4. Error 44. After that in nullo est erratum is pleaded the Defendant shall not alledg Diminution for they are agreed before that that is the Record The Writ of Error was general and did not shew when the Judgment was when the Ejectment was what the Lands were and nothing is certain in the Writ of Error but the persons and the Action He shall not be concluded by the general retorn of the Record by the Chief Judg of the Common Pleas. Fitz. 25. a. C. 6. Entr. 231. The Record was removed and a Scire facias awarded ex recorde and Diminution was alledged for omitting of certain words yet the Retorn there was of the Record omnia ea tangentia Dyer 330. The Court certifie that the partie was not essoigned there then cannot be any Certificate of the Chief Justice to the contrary The Principal Case was An Original bore date in June 18 Jacobi and another Original in September 18 Jacobi and both were retornable S. Mich. And the Trespass was done after the first Original sued forth and before the later and both the Writs are in Court The question was upon which of the Originals the Judges should judge 4 E. 4. 26 27 28. There it is holden that the Judges ought not to suppose any Error 22 E. 4. 45 Error was brought to reverse a Judgment in a Writ of Dower And the Error assigned was That there was not any Issue joyned but because there was sufficient matter upon which the Judges might give their verdict therefore the Judgment was affirmed