CASES
IN
PARLIAMENT
Resolved
and
Adjudged
,
UPON
Petitions
,
and
Writs
of
Error
.
—
Quicquid
sum
Ego
,
quamvis
Infra
Lucili
censum
ingeniumque
tamen
me
Cum
Magnis
vixisse
,
invita
fatebitur
usque
Invida
—
Horat.
LONDON
:
Printed
for
A.
and
J.
Churchill
,
at
the
Black
Swan
in
Pater-noster-Row
,
MDCXCVIII
.
TO
THE
READER
.
NO
Collection
of
Cases
adjudged
in
Parliament
having
been
yet
published
,
a
Preface
seems
necessary
to
bespeak
the
Reception
of
that
which
is
now
presented
to
the
World
.
To
commend
or
excuse
the
Collector
,
will
not
perhaps
be
a
method
to
introduce
it
most
to
advantage
:
what
may
be
spoken
in
favour
of
his
diligence
or
capacity
,
will
be
censured
vain
,
and
if
any
excuse
be
offered
for
his
inability
to
have
done
it
better
,
some
will
be
ready
to
take
him
at
his
word
,
and
think
the
Performance
comes
from
a
careless
or
unskilful
Hand
.
Whatever
the
Author
is
,
there
needs
no
Apology
to
be
made
for
the
nature
or
design
of
the
Work
it self
;
for
the
Subject
Matter
will
be
useful
and
entertaining
to
all
Ranks
of
English
Men
,
to
whom
Books
are
so
;
that
is
,
to
all
such
as
understand
and
love
Literature
.
Here
is
our
Municipal
Law
,
and
the
reason
of
it
,
Equity
and
the
Law
of
Nations
interspersed
;
here
is
the
manner
of
arguing
,
and
the
language
of
the
Bar
briefly
toucht
;
here
are
the
Forms
of
Proceedings
sometimes
mentioned
,
but
then
again
those
Forms
are
superseded
by
the
Original
and
Eternal
Rules
of
Justice
.
By
the
Debates
and
Arguments
here
reported
,
you
may
be
acquainted
in
some
measure
with
the
Rights
of
the
Peers
,
and
their
incapacity
to
alien
such
their
Rights
;
with
the
nature
of
Slander
,
and
some
Rules
concerning
it
;
the
Course
of
Equity
in
respect
of
Penalties
and
Costs
.
The
Law
of
Average
in
the
Case
of
Partial
Losses
at
Sea
;
the
Circumstances
upon
which
Relief
may
be
had
in
Equity
against
hard
or
unreasonable
Agreements
;
the
Construction
of
Wills
to
charitable
Uses
,
where
the
Estate
intended
is
greater
in
value
,
then
the
particular
Bequests
amounts
unto
;
the
Power
of
a
Council
of
State
to
commit
;
with
variety
of
Matter
concerning
Pleading
;
and
the
Plantations
belonging
to
England
;
and
the
Priviledges
and
Birthrights
of
the
English
Subject
by
the
Common
Law
,
and
how
far
that
Law
extends
.
The
nature
of
Colledges
,
Hospitals
,
and
other
Elemosynary
Foundations
,
and
the
Authority
and
Power
of
Visitors
,
and
the
Methods
of
their
Proceedings
;
the
Court
of
Chivalry
or
Honour
,
the
extent
and
boundaries
of
its
Jurisdiction
,
before
whom
held
,
and
when
and
in
what
Cases
a
Prohibition
lyes
to
it
;
the
power
of
Lords
of
Copyhold
Mannors
to
refuse
Petitions
for
the
Reversal
of
Recoveries
in
their
Courts
,
and
the
Judgment
of
Equity
upon
such
occasions
;
the
right
of
Dower
,
and
the
efficacy
of
a
Term
attending
the
Inheritance
to
prevent
its
enjoyment
,
and
the
opinion
of
Equity
thereupon
.
The
Preference
of
an
Outlawry
upon
mesne
Process
to
a
Judgment
not
extended
,
and
the
practise
and
reason
of
the
practise
of
the
Court
of
Exchequer
in
that
case
;
the
Consideration
which
a
Court
of
Equity
ought
to
have
of
Bonds
,
Bills
,
or
Promises
made
or
given
upon
Condition
or
Consideration
of
promoting
and
procuring
Matches
.
The
dependency
which
Ireland
hath
upon
England
,
and
her
subordination
to
it
,
and
the
Authority
of
the
House
of
Peers
in
This
,
over
the
Proceedings
in
the
Chancery
of
That
Kingdom
;
the
opinion
of
Equity
upon
Conditional
Limitations
,
and
what
will
be
a
Performance
of
such
Conditions
,
and
to
whom
the
Profits
shall
go
during
the
intermediate
time
,
&c.
The
qualification
requisite
in
a
Presentee
to
a
Benefice
,
and
the
power
of
the
Ordinary
to
refuse
for
defect
of
Knowledge
,
and
how
that
defect
is
to
be
tried
;
the
Construction
of
Law
upon
a
Deed
leading
the
Uses
of
a
Fine
of
the
Wives
Land
to
the
Heirs
of
the
Husband's
Body
,
the
Husband
dying
afterwards
before
the
Wife
;
the
right
of
the
half
Blood
,
in
the
distribution
of
an
Intestates
Estate
,
and
unto
what
Share
;
the
right
of
nominating
to
the
Office
of
chief
Clerk
for
inrolling
of
Pleas
in
B.R.
and
to
whom
it
belongs
;
the
nature
of
a
Bill
of
Exceptions
,
and
the
Proceedings
thereupon
,
and
in
what
Cases
the
same
may
be
refused
,
and
if
any
Authority
in
the
Lords
over
the
Judges
in
case
of
such
refusal
.
The
Punishment
of
Treason
by
the
English
Laws
,
and
the
Form
of
Judgments
in
that
case
;
the
nature
of
contingent
Limitations
after
a
Fee
,
and
if
they
may
be
allowed
upon
Contingencies
to
happen
at
any
time
after
the
decease
of
Persons
then
in
being
;
the
manner
of
declaring
the
Uses
of
a
Fine
,
and
by
what
Deed
or
Writing
;
the
nature
of
Wills
,
and
of
the
revocations
of
them
,
and
if
a
Will
,
whereof
the
Contents
are
unknown
,
may
revoke
a
former
;
the
efficacy
of
the
acts
of
one
that
is
Non
compos
mentis
;
and
if
,
and
how
far
void
;
what
Deeds
altering
the
Estate
of
a
Testator
,
shall
revoke
a
solemn
Will.
The
nature
of
the
Office
of
a
Clerk
of
the
Peace
,
and
by
whom
grantable
,
and
for
what
Interest
,
and
how
removeable
;
the
Prerogative
of
Presenting
to
Benefices
made
void
by
Promotion
,
and
if
such
Prerogative
be
served
or
fulfilled
by
a
Commendam
;
and
whether
it
can
operate
upon
a
new
created
Parish
or
Rectory
;
the
formal
reason
and
essence
of
Treason
,
and
wherein
it
consists
,
and
what
is
necessary
to
be
alledged
in
Indictments
for
that
Offence
;
the
right
of
Tythes
for
Herbage
or
Agistment
of
Cattle
grazed
and
fed
for
Sale
,
tho'
formerly
used
to
the
Plough
.
The
Exposition
of
a
Will
of
a
Native
of
France
,
and
by
what
measures
a
Judgment
ought
to
be
made
of
the
meaning
of
Phrases
used
by
such
Persons
,
in
that
Language
,
upon
such
an
occasion
;
the
Construction
of
the
word
Share
in
a
Will
,
concerning
the
New-River
Water
;
the
force
or
validity
of
a
Grant
or
Assignment
of
Land
(
in
which
the
Grantor
had
a
very
long
term
)
to
hold
from
and
after
the
Grantor's
decease
;
the
Title
of
Knight
,
if
,
and
how
,
part
of
the
Name
,
and
what
Allegations
in
a
Count
in
a
Quare
Impedit
are
not
needful
to
be
answered
to
,
and
what
may
be
traversed
,
and
what
Grants
of
the
Crown
shall
be
good
notwithstanding
some
,
and
what
Misrecitals
.
These
and
many
other
Particulars
,
worthy
of
most
Mens
notice
,
are
here
debated
;
and
it
may
reasonably
be
supposed
,
that
none
will
be
Enemies
to
the
Design
and
Publication
,
but
those
who
mislike
the
small
Remainders
,
we
have
left
us
,
of
the
Aristocratical
part
of
our
Government
:
the
Gentlemen
who
do
so
,
must
be
unacquainted
with
the
Grecian
and
Roman
Story
,
as
well
as
with
our
own
,
or
else
have
read
it
but
superficially
;
for
even
the
most
perfect
of
the
Grecian
Common-wealths
were
somewhat
Aristocratical
.
That
which
may
be
called
such
,
is
Sparta
,
which
,
tho'
it
had
some
Laws
we
cannot
account
for
,
yet
during
several
Centuries
it
maintained
its
own
Liberty
,
and
assisted
its
Neighbours
to
preserve
theirs
.
And
notwithstanding
some
Men
may
think
the
contrary
,
Democracy
was
not
the
only
Favourite
Model
of
the
Ancient
Legislators
.
The
wise
Solon
,
who
founded
that
Popular
Government
of
Athens
,
was
not
so
fond
of
his
own
Frame
,
as
to
recommend
it
to
other
places
,
tho'
he
believed
that
it
suited
best
with
the
Infirmities
of
the
People
:
And
even
in
Rome
,
before
she
acquired
any
great
Reputation
,
there
was
a
Senate
,
under
Kings
it
had
one
,
nor
doth
it
appear
that
a
Senate
was
adjudged
useless
,
when
it
became
and
was
called
a
Common-wealth
.
And
as
soon
as
the
Senate
lost
its
Authority
,
a
Tyranny
was
set
up
:
This
may
be
called
their
Aristocratical
Part
;
and
whosoever
reads
the
Lives
of
those
Roman
Worthies
,
Cato
Vticensis
,
&c.
that
nobly
attempted
to
defend
the
Liberties
of
their
Country
,
will
find
,
That
it
was
for
the
upholding
the
Authority
of
the
Senate
,
that
they
contested
,
fought
,
and
died
.
Machiavel
indeed
,
in
his
Discourses
upon
the
Decades
of
Titus
Livius
,
has
strained
almost
every
thing
in
favour
of
Democracy
,
and
with
extream
Art
and
Labour
,
hath
illustrated
a
Popular
State
,
and
made
Rome
the
Example
of
it
;
and
yet
even
in
those
Discourses
,
he
sometimes
shews
the
Necessity
of
an
Aristocratical
Mixture
,
to
make
a
just
and
regular
,
and
happy
and
lasting
Government
.
Nay
,
Algernoon
Sydney
himself
,
that
famous
Assertor
of
Liberty
,
doth
almost
every
where
prefer
the
Aristocracy
;
and
he
was
confirmed
in
that
Sentiment
,
by
the
Views
he
had
taken
of
former
and
present
Governments
,
and
by
the
Knowledge
he
had
of
what
formerly
was
our
own
Constitution
,
till
Henry
the
Sevenths
Reign
:
For
that
Prince
(
as
the
Lord
Bacon
rightly
observes
)
was
rather
cunning
in
relation
to
his
own
Times
,
then
a
Person
that
had
a
full
prospect
of
what
would
afterwards
be
the
Consequence
of
his
Measures
,
or
that
had
a
due
regard
to
Posterity
:
No
Man
can
wish
,
that
the
House
of
Lords
should
be
made
Cyphers
;
if
they
could
once
again
be
made
the
Natural
Balance
between
the
King
and
People
.
There
drop
,
even
from
Mr.
Sidney's
Pen
,
Expressions
enough
to
prove
,
that
a
just
Composition
of
the
Three
Powers
,
Monarchical
,
Aristocratical
,
and
Democratical
,
would
have
been
reckoned
even
by
him
an
equal
Government
.
Such
a
Mixture
even
our
Government
was
;
and
tho'
some
,
perhaps
out
of
meer
Ignorance
,
have
disputed
the
Democratical
,
and
others
the
Monarchical
part
of
our
Constitution
;
yet
no
Body
ever
to
this
day
could
pretend
,
that
our
Barons
,
those
Majores
Regni
,
had
not
originally
a
Share
both
in
the
Legislature
and
Administration
within
this
Kingdom
:
The
Fact
is
not
necessary
to
be
proved
,
because
't
is
not
denied
;
and
the
reasonableness
of
it
is
apparent
.
There
's
no
occasion
to
Complement
them
for
what
their
Ancestors
did
in
procuring
of
Magna
Charta
(
which
the
judicious
and
indefatigable
Antiquary
Sir
Henry
Spelman
,
saith
,
was
only
an
Ascertainment
or
Recompilement
of
our
Old
Laws
)
.
It
would
be
of
Publick
Service
,
to
have
a
just
State
of
the
true
Powers
of
the
House
of
Lords
in
their
Judicial
and
Legislative
Capacities
,
according
to
the
true
English
Constitution
;
that
we
might
be
familiarized
to
the
almost
antiquated
Notions
of
the
Aristocratical
part
of
our
Government
;
and
so
may
neither
be
over-run
with
the
Schemes
of
Absolute
Monarchy-Men
,
who
would
have
all
Judicial
Power
,
even
the
Dernier
Resort
lodged
in
the
Crown
,
or
in
Delegates
appointed
by
it
,
and
not
in
the
Parliament
,
nor
be
crumbled
into
the
Disorders
which
must
follow
the
Notions
of
those
who
aim
at
a
pure
Democracy
.
But
to
write
an
Exact
Discourse
upon
this
Head
,
would
require
more
Lines
then
can
become
a
Preface
:
The
Reader
therefore
must
not
here
expect
an
Account
of
the
Growth
and
Decays
of
their
Power
,
and
the
true
Reasons
of
Each
;
and
the
Regulations
or
Restrictions
that
will
be
needful
,
if
they
ever
happen
in
any
degree
to
be
restored
to
the
Preheminence
and
Authorities
,
which
they
formerly
enjoyed
among
us
.
It
is
enough
for
the
present
to
say
,
That
all
the
Measures
taken
and
used
in
the
Exercise
of
their
Judicature
,
are
observed
without
Doors
,
especially
by
the
Persons
concerned
,
their
Relations
and
Friends
:
That
the
Errors
in
such
Exercise
(
if
any
)
are
only
to
be
corrected
by
themselves
,
and
no
ways
proper
or
fit
to
be
suggested
by
any
private
Person
,
much
less
to
be
published
in
Print
.
However
,
it
may
be
hoped
,
that
these
Reports
may
probably
convince
the
young
Nobles
of
this
Realm
,
and
all
who
are
imployed
in
and
about
their
Education
,
that
some
general
Knowledge
of
the
Laws
of
England
,
and
some
Acquaintance
with
History
and
other
Learning
,
cannot
be
unworthy
the
Ambition
of
every
Noble-man's
Son
,
who
has
any
hopes
to
sit
as
Judge
in
that
August
Assembly
;
where
the
nicest
of
Questions
,
in
Cases
of
the
greatest
Consequence
,
and
between
the
greatest
of
Subjects
,
and
many
times
between
the
King
and
his
People
,
do
frequently
come
under
Consideration
.
And
these
Papers
may
likewise
remember
them
,
what
just
Liberty
of
Arguing
and
Debating
hath
been
allowed
to
Counsel
,
and
with
what
Candour
and
Patience
they
have
been
heard
,
even
in
the
most
tender
Points
:
As
also
shew
them
what
Resolutions
were
taken
upon
those
Debates
and
Arguments
,
that
the
Law
may
be
consistent
with
it self
,
and
remain
(
as
it
is
)
a
certain
Rule
of
doing
Right
.
As
to
the
present
Performance
,
the
Reader
is
desired
to
pardon
all
Mistakes
in
Grammar
,
and
in
the
Figures
of
Folio's
and
Pages
,
and
other
common
Errata
of
the
Press
,
which
by
reason
of
multiplicity
of
other
Business
,
could
not
easily
be
attended
to
and
observed
.
—
Omari
Res
ipsa
negat
—
THere
will
shortly
be
Printed
,
The
Historical
Library
of
Diodorus
the
Sicilian
,
the
whole
Fifteen
Books
,
Translated
from
the
Greek
,
with
all
the
Fragments
;
And
will
be
Sold
by
Awnsham
and
John
Churchill
in
Pater-noster-row
.
Dominus
Rex
,
&
Viscount
Purbeck
.
UPON
a
Petition
,
the
Question
was
in
the
House
of
Lords
,
Whether
the
Dignity
of
a
Viscount
could
be
surrendred
to
the
King
by
a
Fine
?
And
it
was
Argued
at
the
Bar
by
three
Counsel
for
the
Petitioner
,
and
by
the
Attorney
General
for
the
King
.
It
was
urged
on
behalf
of
the
Petitioner
,
That
a
Dignity
cannot
be
surrendred
to
the
Crown
;
and
that
for
these
Reasons
:
1.
It
is
a
Personal
Dignity
annexed
to
the
Blood
,
and
so
inseparable
and
immoveable
,
(
See
Ratcliff's
Case
3
Rep.
Rutland's
Case
6
Rep.
53.
)
that
it
cannot
be
either
transferred
to
any
other
Person
,
or
surrendred
to
the
Crown
;
it
can
neither
move
forward
nor
backward
,
but
only
downward
to
Posterity
;
and
nothing
but
a
Deficiency
or
a
Corruption
of
the
Blood
can
hinder
the
Descent
,
as
if
the
Ancestor
be
Attainted
of
Treason
or
Felony
,
&c.
For
in
that
Case
,
the
Heir
conveying
no
Inheritable
Blood
,
cannot
make
any
Claim
to
that
which
is
annexed
to
the
Inheritable
Blood
;
and
besides
,
there
is
a
tacite
Condition
of
Forfeiture
annexed
to
those
Dignities
,
by
the
Breach
of
which
Condition
the
Dignity
is
determined
;
but
by
the
Act
of
the
Party
there
can
be
no
Determination
of
it
,
unless
there
be
an
Attainder
which
corrupts
the
Blood
:
And
he
took
a
difference
between
Ancient
Honours
and
Dignities
which
were
Feodary
and
Officiary
(
as
Earl
Marshal
of
England
)
which
have
a
Relation
to
an
Office
or
Land
,
for
such
are
Transferrable
over
;
and
such
Dignities
as
are
only
Personal
,
Inherent
in
the
Blood
,
and
only
favour
quasi
of
the
Reality
,
of
which
no
Fine
can
be
levied
,
as
't
is
of
an
Annuity
to
a
Man
and
his
Heirs
,
no
Fine
can
be
levied
.
2.
A
Dignity
was
neither
subject
to
a
Condition
at
the
Common
Law
,
nor
intailable
by
the
Statute
de
Donis
,
&c.
nor
barrable
by
the
Statute
of
Fines
:
Indeed
,
in
Nevil's
Case
,
something
which
favours
of
the
contrary
Opinion
is
said
;
but
the
Question
there
was
,
Whether
't
was
forfeitable
by
Treason
?
And
therefore
the
present
Question
is
very
forreign
to
the
Matter
there
debated
.
A
Dignity
differs
from
other
Inheritances
,
being
an
Honour
Personal
affixed
to
the
Blood
,
cannot
be
forfeited
by
a
Non-performance
of
a
Condition
,
except
that
Tacite
Condition
in
Law
,
and
consequently
cannot
be
intailed
;
and
tho'
the
Title
of
a
Viscount
be
of
a
Place
,
yet
it
is
only
Titular
,
for
it
is
often
taken
from
the
Sirnames
of
Families
.
3.
The
Title
of
Viscount
,
&c.
is
not
so
much
a
private
Interest
as
a
publick
Right
,
for
Peers
are
born
Counsellors
of
State
,
and
one
part
of
a
Senatory
Body
,
and
therefore
cannot
be
renounced
without
the
Consent
of
all
those
who
have
interest
in
it
;
they
cannot
,
without
the
Consent
of
the
whole
Body
,
whereof
they
are
so
considerable
Members
,
cut
themselves
off
from
the
Body
;
and
so
the
Objection
of
quilibet
potest
Juri
suo
renuntiare
is
easily
answered
.
'T
was
further
argued
on
the
same
side
,
That
1.
An
Honour
goes
not
according
to
the
Rules
of
the
Common
Law
,
nor
is
it
governable
by
them
,
it
is
not
therefore
pertinent
to
argue
from
those
Rules
which
hold
in
Cases
of
other
Inheritances
,
for
a
Dignity
descends
to
the
Half-blood
,
there
is
no
Coparcinership
of
it
,
but
the
Eldest
takes
the
whole
;
a
Fee-simple
will
go
to
a
Noble-man
without
the
word
(
Heirs
)
1
Inst.
27.
It
differs
from
Estates
in
Land
in
the
Intrinsick
Matter
,
as
well
as
the
Manner
of
the
Limitation
,
because
it
is
given
for
two
Reasons
,
for
Counsel
and
Defence
;
and
it
is
a
Civil
Interest
,
appointed
by
the
Civil
Constitution
of
the
Realm
,
which
goes
with
the
Blood
,
and
is
inherent
in
the
Blood
,
insomuch
that
it
is
agreed
on
all
hands
,
that
it
can't
be
transferred
to
a
Stranger
;
and
till
Nevil's
Case
,
't
was
doubted
whether
forfeitable
for
Treason
;
if
a
Lord
die
,
his
Son
shall
be
introduc'd
without
the
Ceremony
usual
at
the
first
Creation
;
a
Peer's
eldest
Son
,
and
all
Minors
,
sit
behind
the
Chair
of
State
,
to
prepare
them
for
the
Sitting
in
the
House
as
Members
,
and
because
they
have
some
Title
to
the
Honour
they
are
called
Nobiles
Nati
,
for
the
first
time
they
fetch
breath
they
have
Nobility
in
them
:
So
that
he
that
Surrenders
by
Fine
,
must
not
only
extinguish
his
Estate
in
the
Honour
,
but
also
the
Nobility
of
his
Blood
.
2.
Every
Lord
is
not
only
a
Lord
for
himself
,
but
also
hath
a
Right
of
Peerage
,
and
is
a
Peer
of
the
Realm
,
and
therefore
a
Peer
for
every
one
of
the
House
,
and
therefore
hath
the
Priviledge
to
demand
his
Writ
Ex
debito
Justitiae
,
and
is
to
be
tried
by
his
Peers
in
Capital
Crimes
;
and
that
appears
farther
from
a
Matter
which
happened
in
this
House
,
16
Car.
2.
There
was
an
Order
mentioning
the
Bishops
to
be
Lords
of
Parliament
,
not
Peers
;
at
which
the
Lords
wondering
,
ordered
a
Committee
to
examine
the
reason
of
it
;
which
proves
that
Lord
is
not
so
high
nor
inclusive
as
Peers
:
So
that
if
the
Fine
have
any
Operation
,
it
takes
away
not
only
his
Right
,
but
also
the
Right
of
the
House
of
Lords
.
3.
The
trial
of
Baron
or
no
Baron
upon
Issue
in
any
Court
of
Judicature
is
by
the
Records
of
Parliament
;
but
if
a
Fine
may
be
levied
in
the
Common
Pleas
,
the
Trial
is
drawn
ad
aliud
Examen
,
and
must
then
be
by
the
Records
of
that
Court
.
The
Clerk
of
the
Parliament
always
certifies
if
he
be
a
Baron
,
because
he
hath
the
Record
before
him
;
but
he
cannot
certifie
he
is
no
Baron
,
because
he
hath
not
the
Record
thereof
before
him
.
4.
No
Fine
can
be
levied
of
a
thing
Personal
,
as
an
Annuity
to
a
Man
and
his
(
Heirs
)
,
but
a
Dignity
is
a
thing
Personal
;
and
so
he
took
notice
of
the
difference
betwixt
the
Honours
of
Peerage
,
which
are
Personal
,
and
the
Honours
that
are
Feodary
and
Officiary
,
which
have
reference
to
an
Office
or
Land
.
5.
He
did
argue
ab
inconvenienti
that
this
Opinion
can
be
no
Inconveniency
to
the
Crown
;
but
the
contrary
makes
Nobility
a
meer
Pageantry
,
by
putting
it
into
the
Hands
of
a
weak
and
angry
Father
,
to
dispossess
an
hopeful
Son
of
that
which
is
his
Birth-right
:
The
Titles
of
Esquire
and
Gentleman
are
drowned
in
the
greater
Dignity
of
that
of
a
Peer
,
and
when
the
greater
are
gone
,
the
other
must
go
with
it
:
And
then
from
being
a
Nobleman
to
day
,
he
and
the
rest
of
his
Family
must
be
below
all
Nobility
,
and
be
called
Yeomen
or
Goodman
Villers
to
morrow
,
which
may
bring
great
Confusion
to
a
Noble
Family
and
all
its
Relatives
;
and
surely
this
House
will
not
put
such
a
publick
Disrespect
on
such
a
Family
,
by
agreeing
to
so
unjust
an
act
of
one
Man
.
And
that
which
was
most
relied
upon
,
was
a
Resolution
of
this
House
in
Stafford's
Case
,
Anno
1640.
which
no
Man
without
Indecency
can
question
;
it
passed
not
sub
silentio
or
obiter
,
but
upon
debate
;
neither
could
it
be
any
way
invalid
upon
account
of
the
Times
,
for
it
was
in
the
Infancy
of
that
Parliament
,
and
that
wherein
a
Peer's
Case
,
who
sits
now
in
this
House
,
was
judicially
before
them
;
and
therefore
there
is
no
reason
to
shake
that
Judgment
more
than
any
other
Judgment
of
that
time
.
My
Lord
Cooke
in
his
4
Inst.
Chapt.
of
Ireland
,
is
of
Opinion
that
Honours
cannot
be
extinguished
but
by
Act
of
Parliament
.
Then
as
to
the
Precedents
that
have
been
urg'd
on
the
other
side
,
there
are
none
directly
to
the
Point
;
for
as
to
Nevil's
Case
,
there
are
very
few
Cases
cited
there
aright
,
and
are
not
to
be
look'd
upon
as
Law
.
The
Case
of
my
Lord
of
Northumberland
in
3
&
4
Phil.
&
Mar.
was
by
way
of
Creation
,
and
so
was
the
Case
of
Dudley
.
And
Dugdale
in
his
Baronage
of
England
,
pag.
270.
gives
an
account
of
it
;
and
the
rest
of
the
Precedents
are
above
Two
hundred
years
old
,
which
passed
sub
silentio
,
and
are
not
to
be
vouched
unless
they
were
disputed
.
The
first
is
Bigod's
,
who
in
the
time
of
Edw.
1.
surrendred
the
Honour
of
Earl-Marshal
of
England
to
the
King
,
who
granted
it
to
him
in
Tail
:
This
Honour
is
Officiary
,
and
therefore
nothing
to
the
purpose
;
and
the
Surrender
was
made
thro'
fear
,
Walsingham
95.
The
next
is
the
Earl
of
Pembroke's
Case
,
who
in
8
Edw.
4.
was
made
Earl
in
Tail
,
and
by
this
he
had
the
Grant
of
the
Town
of
Haverfordue
;
the
King
afterwards
inclining
to
dignifie
his
Son
with
that
Title
,
procured
him
to
Surrender
by
Deed
,
and
bestowed
on
him
another
Title
,
and
gave
a
greater
Estate
,
and
an
ancienter
Honour
.
Here
was
an
Estate
Tail
surrendred
by
Deed
;
it
might
work
a
kind
of
Discontinuance
,
but
no
legal
effectual
Surrender
.
And
for
the
Case
of
Ch.
Brandon
,
who
in
the
time
of
H.
8.
was
created
Viscount
Lisle
,
afterwards
he
surrendred
that
,
and
got
a
Dukedom
;
now
no
Man
ever
questioned
the
efficacy
of
this
Surrender
,
for
he
himself
had
no
reason
to
question
it
,
for
't
was
to
his
advantage
;
and
none
other
could
question
it
,
for
he
died
without
Issue
,
and
his
Honour
with
him
:
And
so
in
the
Case
of
my
Lord
Stafford
,
he
surrendred
,
and
got
a
new
Honour
.
So
that
it
appeared
all
these
Cases
were
either
Honours
referring
to
Offices
and
Lands
,
or
else
such
as
were
for
the
re-granting
of
greater
Dignities
,
which
they
had
no
reason
to
question
,
and
so
they
passed
sub
silentio
:
But
here
is
not
one
Precedent
that
they
did
ever
Surrender
to
the
Prejudice
of
their
Blood
,
or
move
themselves
quite
out
of
the
House
by
Fine
or
Deed.
And
further
,
If
Precedents
be
good
for
the
Surrender
of
an
Honour
by
Fine
,
why
not
also
for
Transferring
of
it
to
another
?
for
of
this
we
have
some
Precedents
,
Daincourt's
Case
,
4
Inst.
126.
One
Branch
of
the
Family
sat
in
the
House
by
virtue
of
a
Grant
from
the
other
Branch
from
the
Reign
of
Ed.
2.
to
Hen.
6.
and
the
Case
of
the
Earldom
of
Chester
,
first
granted
17
H.
3.
n.
25.
and
transferred
39
H.
3.
And
there
was
an
Attempt
made
in
the
Lord
Fitzwater's
Case
,
to
make
a
Baron
by
transferring
of
the
Dignity
;
but
you
will
find
all
these
Precedents
disallowed
:
And
't
was
said
that
no
Man
ever
met
with
any
Case
where
any
Nobleman
by
Fine
levied
,
or
other
Conveyance
,
became
a
Yeoman
or
Ignoble
.
'T
was
argued
by
another
much
to
the
same
effect
,
That
Baronage
and
Peerage
is
to
be
determined
by
the
Records
of
the
Lords
House
,
and
if
any
other
way
be
given
,
as
there
must
be
,
if
a
Fine
be
allow'd
to
barr
,
then
the
old
true
way
is
gone
:
This
was
not
a
Fine
Conditional
at
the
Common
Law
,
and
therefore
not
within
the
Statute
De
donis
Conditionalibus
,
and
an
Honour
being
a
Personal
Dignity
,
is
not
to
be
barred
(
Jones
Rep.
123.
)
by
Fine
,
being
inherent
in
the
Blood
,
&c.
The
Duke
of
Bedford
was
by
Authority
of
Parliament
degraded
,
and
that
was
for
Poverty
,
and
by
Act
of
Parliament
,
and
not
by
Surrender
:
Therefore
Judgment
was
prayed
for
the
Petitioner
.
The
Attorney
General
argued
pro
Domino
Rege
upon
these
Reasons
:
1.
There
is
but
a
defective
Proof
of
the
Creation
of
this
Honour
,
no
Letters
Patents
,
no
Records
of
the
Inrollment
produced
,
nor
any
Entry
in
any
Office
of
such
a
Patent
,
as
is
usual
;
all
that
is
pretended
is
,
That
he
sate
in
some
Parliaments
afterwards
as
Viscount
Purbeck
;
but
that
will
not
be
accepted
for
proof
;
for
no
Man
can
be
created
Viscount
but
by
Letters
Patents
:
a
Writ
of
Summons
will
be
an
Evidence
of
a
Creation
,
but
will
not
amount
to
a
Creation
;
there
is
a
Ceremony
equal
almost
to
that
of
an
Earl
,
there
must
be
a
Coronet
;
all
which
must
be
performed
,
or
he
must
have
Letters
Patents
to
dispense
with
it
,
which
being
Matter
of
Record
,
must
be
produced
.
18
Hen.
6.
Beaumont
was
the
first
created
Viscount
,
but
there
was
never
any
since
,
nor
then
without
Letters
Patents
;
for
he
is
to
take
place
of
some
,
and
therefore
he
must
have
something
to
show
for
his
Precedency
;
but
a
Baron
is
the
lowest
Dignity
,
and
therefore
may
be
created
by
Writ
:
Neither
can
it
be
presumed
that
they
were
lost
,
for
except
it
be
produced
it
makes
no
Title
;
except
they
be
produced
,
it
shall
not
be
intended
there
was
any
;
neither
can
it
be
help'd
by
any
concurrent
Evidence
,
for
if
there
were
(
Page's
Case
5
Rep.
53.
)
a
true
Creation
,
there
would
be
some
Evidence
in
some
of
the
Offices
;
but
there
is
not
in
any
of
them
the
least
vestigia
of
proof
to
ground
a
presumption
.
2.
Dignities
,
as
well
as
other
Inheritances
,
must
be
limited
according
to
the
Rules
of
Law
;
the
Dukedom
of
Cornwal
(
in
8
Rep.
the
1.
the
Prince's
Case
)
was
limited
according
to
the
strictest
Rules
of
Law
.
And
whereas
it
hath
been
said
that
Dignities
differ
from
other
Inheritances
,
that
is
where
there
is
some
particular
reason
for
it
,
as
in
the
case
of
Transmission
or
Alienation
,
which
depends
not
upon
the
Manner
of
Creation
,
as
shall
be
shewn
afterwards
:
And
for
the
Case
of
1
Inst.
27.
which
was
that
an
Inheritance
of
a
Dignity
may
be
created
by
other
words
than
other
Inheritances
are
,
as
an
Estate
Tail
without
the
words
of
this
body
,
there
's
not
any
such
thing
in
the
Book
:
'T
is
said
indeed
,
that
if
the
King
for
reward
of
Services
done
,
do
grant
Armories
to
a
Man
and
his
Heirs
Males
,
't
is
an
entail
of
the
Coat
without
saying
of
his
body
;
but
I
think
that
will
not
be
taken
for
the
Case
of
a
Dignity
;
the
Statute
De
donis
Conditionalibus
extends
to
Honours
;
the
word
terram
would
be
thought
an
improper
word
to
comprehend
all
things
tailable
,
yet
said
to
extend
to
all
,
and
to
Honours
too
,
1
Inst.
20.
and
if
an
Honour
can't
be
entailed
,
then
no
Remainder
can
be
limited
;
and
yet
there
be
many
Lords
that
sit
in
this
House
by
Remainder
by
good
Title
.
The
Statute
of
26
Hen.
8.17
.
saith
,
That
if
a
Man
be
Attainted
of
Treason
,
he
shall
forfeit
his
Lands
,
Tenements
,
and
Hereditaments
:
Now
't
is
adjudged
that
the
word
Hereditaments
comprehends
Honours
;
which
show
that
they
are
subject
to
the
same
Rules
of
Law
that
govern
other
kind
of
Inheritances
,
and
are
comprehended
with
other
Particulars
without
general
words
.
This
being
premised
,
it
's
a
known
Maxim
in
all
Laws
,
Nihil
rationi
magis
consentaneum
quam
rem
eodem
modo
dissolvi
quo
constituitur
,
which
Rule
is
so
general
,
that
the
highest
Authority
,
i.
e.
the
Parliament
is
not
exempt
from
it
;
for
't
is
not
possible
to
establish
any
thing
so
firm
by
Statute
,
which
cannot
by
another
Statute
be
annulled
.
Now
in
the
Creation
of
a
Peer
there
are
three
things
;
the
Person
that
creates
,
the
Person
that
is
created
,
the
Matter
of
Record
whereby
he
is
created
.
Now
if
the
King
,
who
is
the
Person
that
creates
,
and
his
Successors
agree
with
the
Person
that
is
created
Peer
,
and
his
Successors
,
the
one
to
undo
their
parts
,
and
the
other
to
give
away
their
parts
,
and
there
is
a
Matter
of
Record
of
as
high
a
nature
concurring
to
effect
this
Dissiolution
,
&c.
in
some
Cases
't
is
in
the
power
of
an
Ancestor
,
by
his
own
act
,
to
destroy
a
Patent
;
as
if
a
Scire
Facias
in
Chancery
be
brought
against
his
Patent
,
and
Matter
is
suggested
whereby
to
avoid
it
,
this
shall
(
Bro.
tit
.
Patent.
37
,
97.
)
vacate
whatsoever
was
created
by
the
Patent
,
and
yet
'
t
is
there
in
the
power
of
the
Ancestor
,
by
good
Pleading
,
to
have
supported
the
Patent
,
and
by
bad
pleading
to
destroy
it
;
and
therefore
when
the
Foundation
,
which
is
the
Patent
,
fails
,
the
Honour
,
and
whatever
it
be
that
is
erected
upon
it
,
shall
fail
also
:
Every
Estate
by
the
consent
of
all
Persons
interested
and
concerned
in
the
thing
,
may
be
taken
away
,
for
the
Law
is
so
set
against
Perpetuities
,
that
a
Clause
intimating
it
is
void
,
and
tho'
an
Honour
is
not
(
Jones
Rep.
109
,
123.
)
assignable
,
yet
it
may
be
extinguished
.
It
's
true
,
if
a
Man
hath
but
a
part
of
an
Estate
,
as
only
an
Estate
for
Life
,
he
can't
alone
pass
away
the
whole
Estate
,
but
none
who
hath
the
Inheritance
in
Tail
or
in
Fee
,
but
he
may
destroy
the
whole
,
and
tho'
any
one
have
but
part
,
yet
by
the
concurrence
of
all
that
are
concerned
,
the
whole
may
be
destroyed
:
It
is
admitted
if
he
commit
Treason
,
and
is
attainted
thereof
,
he
loseth
the
Honour
for
himself
and
his
Posterity
;
now
't
was
in
his
power
to
do
this
act
overt
;
and
if
by
an
act
unlawful
he
hath
power
to
defeat
the
descent
of
the
Intail
upon
his
Issue
,
there
is
the
same
reason
that
by
a
lawful
act
he
should
part
with
it
;
there
are
two
Acts
of
Parliament
in
force
which
fortifie
the
Fine
;
it
must
be
granted
that
those
Honours
are
within
the
Statute
de
Donis
,
and
then
there
can
be
no
reason
they
should
not
be
within
the
Statutes
of
Fines
,
4
Hen.
7.
&
34
H.
8.
which
say
that
Tenant
in
Tail
may
levie
a
Fine
of
all
things
that
are
intailable
within
the
Statute
de
Donis
,
whatever
therefore
is
within
the
one
is
within
both
:
and
it
is
not
sufficient
to
alledge
that
it
is
inconvenient
that
it
should
be
within
the
Statute
of
Fines
;
for
there
is
an
Act
of
Parliament
,
and
without
an
Act
of
Parliament
to
exempt
it
,
it
can't
be
exempted
:
It
may
be
proved
by
great
variety
of
Precedents
to
have
been
the
practise
in
former
times
,
anciently
nothing
more
frequent
than
to
release
Hoours
.
See
Selden's
Titles
of
Honours
730.
it
was
as
frequent
as
to
grant
them
:
In
latter
times
(
Delaval's
Case
,
11
Rep.
1.
)
it
hath
been
the
Judgment
of
the
Lords
that
Honours
may
be
extinguished
,
which
in
1668.
was
certified
by
all
the
King's
Counsel
Learned
in
the
Law
to
be
good
Authority
.
But
to
go
a
little
higher
,
Andrew
Gifford
Baron
Pomfret
in
Fee
,
4
Hen.
3.
Rot.
100.
surrendred
to
the
King
:
so
23
Hen.
3.
Simon
Mountford
Esq
;
Earl
of
Leicester
,
having
a
Mind
to
take
an
Honour
from
his
eldest
Son
,
and
confer
it
upon
his
younger
,
and
so
it
was
surrendred
and
regranted
accordingly
.
Selden
seems
to
construe
this
to
be
by
way
of
Transmission
and
not
Surrender
;
yet
others
of
later
Authority
(
as
Cambden's
Britan.
Title
Earl
of
Leicester
)
say
expresly
that
he
did
Surrender
it
;
and
Selden
himself
says
it
was
by
Concurrence
of
the
King
:
King
Hen.
3.
(
Rot.
Cr.
24.
men
.
E.
1.
)
created
one
Earl
of
Richmond
,
and
he
surrendred
to
the
King
(
Cambden's
Brit.
Title
Earl
of
Richmond
.
)
Roger
de
Bigod
surrendred
not
only
the
Office
of
Earl
Marshal
,
but
also
the
Earldom
of
Norfolk
.
William
Duke
of
Juliers
,
whose
Father
came
in
with
Edw.
3.
was
created
Earl
of
Cambridge
(
40
Edw.
3.
m.
21.
)
in
Fee
,
his
Son
surrenders
to
the
King
,
which
Record
we
have
here
:
So
Edward
the
Third
made
his
Son
John
of
Gaunt
(
See
Cambden's
ubi
supra
)
Earl
of
Richmond
,
who
surrendred
it
to
the
King
.
And
lastly
,
in
the
Years
1639
,
1679.
Roger
Stafford
,
whom
the
King
intended
to
make
a
Viscount
,
by
the
Advice
of
the
Learned
Men
levied
a
Fine
thereof
,
by
which
't
is
now
enjoy'd
.
Lastly
,
he
argued
ab
inconvenienti
,
for
no
Lord
in
the
House
will
be
in
safety
if
it
should
be
other
ways
,
there
being
many
sitting
in
this
House
by
virtue
of
Surrenders
from
other
Lords
in
former
days
,
and
perhaps
some
of
their
Heirs
are
alive
;
and
so
if
these
Surrenders
be
adjudged
invalid
,
it
would
shake
your
Lordships
own
Possessions
,
and
make
it
dubitable
,
whether
Forreigners
and
Persons
unknown
may
not
come
and
thrust
them
out
;
but
if
not
so
,
it
may
cause
Confusion
amongst
themselves
,
their
former
Honours
having
been
surrendred
to
accept
of
others
,
and
perhaps
some
,
not
thinking
their
Titles
secure
,
will
stick
to
the
former
,
and
so
occasion
Dispute
and
Confusion
about
Precedency
;
and
lastly
,
it
will
put
a
great
Disgrace
upon
your
Ancestors
proceedings
,
who
deemed
this
Course
legal
:
and
those
must
show
very
good
Precedents
that
it
hath
been
disavowed
,
if
they
will
encounter
such
constant
Practises
.
In
the
next
place
't
was
answered
to
their
Arguments
and
Objections
:
and
as
for
that
first
Argument
,
That
an
Honour
is
inherent
in
the
Blood
;
he
answered
,
That
this
Inherency
in
the
Blood
is
not
essential
to
Honours
,
for
an
Honour
may
be
created
for
Life
,
and
then
none
of
the
Posterity
or
Blood
of
the
Peer
is
thereby
enobled
:
It
may
be
limited
to
the
Heirs
Males
of
the
Body
,
so
that
an
Honour
may
touch
and
enter
far
into
the
Blood
,
and
yet
not
run
with
it
;
and
farther
,
it
may
be
limited
to
the
Heirs
by
such
a
Wife
,
there
the
Issue
by
the
second
Venter
shall
never
inherit
the
Dignity
,
and
yet
is
as
near
to
the
Father
,
as
those
that
are
by
the
first
,
so
that
't
is
no
true
ground
that
they
go
upon
,
that
Nobility
is
inherent
in
the
Blood
;
and
for
what
was
alledged
as
to
the
Inconveniency
of
Surrendering
Dignities
,
he
answered
,
That
there
may
be
necessary
Reasons
for
the
extinguishment
of
an
Honour
,
and
it
may
be
for
the
benefit
and
advantage
of
the
Party
and
his
Posterity
;
as
if
it
do
happen
that
the
Family
do
fall
into
Poverty
,
and
be
not
able
to
support
the
Honour
of
Peerage
with
decency
,
and
so
this
Honour
would
perhaps
be
a
Disgrace
to
the
rest
of
the
Lords
;
and
in
a
Child's
Case
,
it
may
happen
to
a
Noble
Family
to
have
those
Afflictions
,
that
to
continue
the
Honour
would
expose
the
Family
to
Infamy
;
and
therefore
some
times
,
to
prevent
the
Son
of
Adultery
from
his
succeeding
to
the
Dignity
,
it
may
be
convenient
to
surrender
it
;
and
yet
this
cannot
be
without
the
concurrence
of
the
Prince
,
who
being
the
Source
of
Honour
,
can
best
judge
of
the
Reasons
for
stopping
the
Stream
;
and
it
cannot
seem
an
harder
Case
to
disinherit
him
of
the
Honour
then
of
the
Estate
,
which
he
may
do
;
and
if
he
leave
his
Honour
without
his
Estate
,
it
will
be
a
Burden
on
his
Shoulders
which
he
will
be
unable
to
bear
;
and
seeing
it
's
necessary
that
there
be
a
concurrence
of
the
Prince
,
it
is
undecent
to
suppose
so
vile
a
thing
of
the
Crown
,
as
to
comply
with
the
Peevishness
and
Simplicity
of
the
Parents
,
where
there
is
no
reason
for
it
:
And
as
for
what
hath
been
alledged
for
the
Invalitity
of
those
Precedents
that
they
were
in
Cases
of
New
Creations
,
and
were
in
nature
of
Transmissions
,
he
answered
,
That
when
an
Honour
is
Surrendred
,
and
a
new
Honour
granted
,
the
former
is
either
extinguished
,
or
not
,
before
the
other
takes
effect
;
if
not
,
then
the
Party
hath
both
together
against
the
will
of
the
Donor
;
and
perhaps
the
new
Honour
may
be
of
that
Name
and
Place
,
and
those
Persons
may
be
concerned
in
it
,
that
will
not
permit
it
to
be
effected
;
and
if
it
be
in
the
power
of
the
Ancestor
,
for
the
advantage
of
his
Posterity
,
by
the
Surrender
of
one
Honour
to
take
a
greater
,
it
may
be
also
in
his
power
to
do
it
for
his
prejudice
.
As
to
the
Objection
,
That
by
the
same
Reason
an
Honour
may
be
extinguished
it
may
also
be
Transferred
;
he
answered
,
That
there
was
a
great
disparity
betwixt
them
;
for
as
to
Alienations
of
Honours
,
there
's
a
great
reason
they
should
be
disallowed
,
for
they
all
flow
from
the
Prince
,
and
therefore
't
is
not
fit
they
should
be
conferred
on
any
but
by
the
Prince
;
tho'
the
King
's
of
England
have
granted
power
to
a
General
to
give
the
Honour
of
Knighthood
,
&c.
in
the
Field
,
for
the
Reward
and
Incouragement
of
Valour
;
yet
this
granting
of
Nobility
is
a
Prerogative
peculiar
to
the
King's
Person
alone
;
no
Man
else
can
ennoble
another
:
Time
was
indeed
,
when
the
Earls
of
Chester
,
having
Counties
Palatine
,
by
virtue
of
their
Jura
Regalia
did
create
Barons
,
yet
they
never
sate
in
Parliament
as
Peers
,
because
Peerage
being
a
thing
of
so
high
a
nature
,
cannot
be
given
by
any
but
a
Soveraign
,
and
is
given
as
a
Trust
and
Obligation
,
so
that
common
Reason
saith
they
are
not
transferrable
.
It
is
said
in
our
Law
,
that
where
Offices
are
granted
to
a
Man
in
Fee
(
See
Jones
122
,
123.
)
he
may
grant
it
over
;
yet
in
some
Cases
they
are
so
near
to
the
Crown
,
that
they
cannot
be
transferred
,
but
must
descend
with
the
Blood
,
upon
the
same
Reason
no
Man
can
ever
transfer
an
Honour
for
the
near
Relation
which
it
hath
to
the
Crown
;
but
in
case
of
Extinguishment
that
Relation
and
Trust
ceaseth
,
and
so
they
are
different
Cases
.
Then
lastly
,
as
to
the
great
Objection
of
the
Judgment
of
the
House
of
Lords
in
Roger
Stafford's
Case
Anno
1640.
he
answered
,
That
notwithstanding
that
Case
,
their
Lordships
had
given
him
leave
to
argue
it
,
and
therefore
they
intended
not
that
should
be
any
Impediment
.
2.
That
is
no
Judgment
;
for
they
being
a
Court
of
Judicature
,
do
as
other
Judges
,
judge
of
the
Matter
before
them
only
.
Then
the
Question
was
,
Whether
an
Honour
could
descend
to
the
half
Blood
?
They
refetred
it
to
the
Judges
,
who
were
of
Opinion
that
it
should
.
Thereupon
ariseth
another
Question
,
Whether
a
Man
might
Convey
or
Transfer
his
Honour
to
another
?
'T
was
resolved
he
might
not
.
This
drew
another
Question
;
whereupon
they
resolved
that
a
Lord
could
not
Surrender
his
Dignity
;
the
Original
Cause
was
about
a
Descent
to
the
half
Blood
,
the
Resolution
is
he
cannot
Surrender
;
how
then
can
they
pretend
that
to
be
a
Judgment
,
when
the
Question
in
point
of
Judgment
was
not
before
them
.
Suppose
it
had
been
resolved
(
and
it
's
a
wonder
it
had
not
all
that
time
)
that
a
Lord
could
not
forfeit
,
and
that
had
been
a
third
step
to
have
made
it
a
perfect
Business
;
for
considering
the
times
,
it
had
been
a
most
convenient
Resolution
:
But
besides
all
that
,
the
King's
Counsel
were
never
heard
in
the
point
,
and
the
rejecting
the
Opinions
of
Learned
Men
,
shows
it
was
no
Resolution
of
the
whole
House
,
tho'
entred
upon
the
Journal
,
and
therefore
he
prayed
Judgment
against
the
Petitioner
.
The
Earl
of
Shaftsbury
spoke
in
the
House
for
the
Petitioner
.
The
stress
of
the
Argument
for
the
King
in
this
Case
is
founded
upon
these
two
Assertions
:
1
That
Honours
are
taken
to
be
within
the
Statute
de
Donis
,
&c.
and
the
general
Rules
of
that
Statute
;
2.
And
then
secondly
,
That
Honours
are
to
be
governed
as
other
Inheritances
,
by
the
Rule
of
the
Common
Law
.
As
for
the
first
,
it
hath
not
been
proved
;
for
the
Resolution
in
Nevil's
Case
2
Jac.
was
Extrajudicial
,
and
no
Judgment
of
any
Cause
before
them
;
and
in
such
Cases
the
Judges
do
not
hold
themselves
to
be
upon
Oath
;
and
if
there
be
two
or
more
of
another
Opinion
,
they
do
not
refuse
to
sign
the
Resolution
of
the
major
part
,
and
so
it
goes
under
the
denomination
of
all
the
Judges
;
but
if
it
were
a
Judgment
of
them
altogether
,
they
could
neither
alter
nor
make
new
the
Law
,
neither
could
they
make
that
intended
within
the
Statute
de
Donis
,
&c.
which
was
not
in
being
till
many
Ages
after
,
Beauchamp
in
Richard
the
Second's
time
being
the
first
Honour
that
was
entailed
by
Patent
.
2.
The
second
Assertion
is
contrary
to
the
Opinion
of
the
most
Learned
Men
,
the
Honour
and
Dignity
of
the
House
,
the
constant
practise
of
Westminster-hall
,
and
the
direct
Evidence
of
the
thing
it self
.
Justice
Berkley
,
a
very
learned
Judge
,
declared
his
Opinion
Febr.
6.
1640.
as
appears
by
the
Records
of
this
House
,
That
Honours
descend
from
the
first
that
was
seized
of
them
;
contrary
to
the
Rules
of
other
Inheritances
;
and
that
Honours
are
not
governed
by
the
Rules
of
the
Common
Law
.
Justice
Dodderidge
,
in
Jones
207.
is
of
opinion
,
That
Honours
are
Personal
Dignities
which
are
affixed
to
the
Blood
;
the
Lords
never
yet
suffered
their
Honours
to
be
tried
at
any
Court
at
Law
,
or
any
other
where
,
save
before
themselves
,
tho'
their
other
Inheritances
are
tried
there
as
well
as
other
Mens
:
So
possessio
fratris
holds
of
Lands
,
but
not
of
a
Dignity
,
which
is
not
disposed
of
as
other
Inheritances
,
nor
will
it
be
guided
by
the
strict
Rules
of
Law
.
The
Lord
Coke
is
of
Opinion
in
Bedford's
Case
,
That
an
Honour
could
not
be
taken
away
but
by
Act
of
Parliament
;
therefore
it
will
be
allowed
that
the
concurrence
of
all
Parties
concerned
may
extinguish
this
as
well
as
other
Inheritances
,
but
the
Concurrence
of
all
can't
be
without
Act
of
Parliament
;
for
the
whole
Kingdom
have
an
Interest
in
the
Peerage
of
every
Lord
:
It
is
a
dangerous
Doctrine
to
say
our
Judicature
and
Legislature
is
our
own
only
.
The
House
of
Lords
is
the
next
thing
to
the
Crown
,
tho'
that
be
far
above
them
;
yet
those
that
reach
at
that
,
must
take
them
out
of
the
way
first
;
they
were
voted
useless
and
dangerous
before
the
Crown
was
laid
aside
;
and
as
in
Descent
of
the
Crown
the
whole
Kingdom
hath
such
an
Interest
in
it
,
as
the
King
cannot
Surrender
or
alien
it
,
so
in
a
proportionable
degree
,
tho'
far
less
,
the
King
and
Kingdom
have
an
Interest
in
their
Lordships
,
and
Dignities
,
and
Titles
.
It
is
true
they
may
be
forfeited
,
but
it
doth
not
follow
that
they
may
be
extinguished
by
Surrender
.
There
be
two
Reasons
for
the
Forfeiture
:
1.
There
is
a
Condition
in
Law
that
they
shall
be
true
and
loyal
to
the
Government
.
2.
Honours
are
inherent
in
the
Blood
,
and
when
that
is
corrupted
,
that
which
is
inherent
is
taken
away
;
but
in
case
of
a
Surrender
these
Reasons
do
not
hold
;
there
is
no
Breach
of
any
Condition
in
Law
,
nor
any
Corruption
of
the
Blood
;
for
these
Reasons
Felony
without
Clergy
forfeits
Honours
;
whereas
other
Inheritances
,
tho'
Fee-simple
,
are
lost
but
for
a
year
and
a
day
,
and
so
are
Freeholds
for
Lives
;
which
is
another
clear
Instance
that
Honours
are
not
governed
by
the
Rules
of
Law
.
It
is
pressed
as
a
known
Law
,
that
Honours
are
grantable
for
Lives
;
a
Point
of
greater
Consequence
than
the
Thing
in
debate
:
It
's
not
a
fair
way
of
arguing
,
nor
to
be
allowed
of
.
As
for
the
Precedents
that
are
Selden
730.
is
expresly
against
them
;
for
it
saith
that
the
Honour
of
Baronages
were
in
Abbots
only
in
right
of
their
Abbies
,
not
inherent
in
them
:
So
that
't
is
plainly
inferred
that
other
Honours
are
Personal
Dignities
.
The
Lord
Delaware's
Case
11
Rep.
makes
nothing
for
them
;
for
it
doth
not
follow
,
that
because
he
could
not
Surrender
that
which
was
not
in
him
,
therefore
he
might
Surrender
that
which
was
in
him
.
As
to
the
other
Precedents
,
he
gave
these
three
Reasons
:
1.
They
were
bare
Surrenders
,
no
Fines
.
2.
All
those
were
made
by
Persons
that
had
advantage
by
them
,
having
greater
Honours
granted
unto
them
;
or
such
whose
Interest
was
beyond
the
Seas
,
and
therefore
were
willing
to
quit
their
Dependencies
here
upon
good
Considerations
that
pleased
them
:
Et
volenti
non
sit
Injuria
.
3.
All
these
Surrenders
passed
sub
silentio
,
and
never
admitted
of
any
Dispute
:
But
as
for
the
sole
melancholy
Precedent
of
Roger
Stafford
1638.
which
was
condemned
in
Parliament
1640.
't
is
to
be
observed
that
Resolution
can't
be
condemned
because
of
the
Times
,
for
the
Affront
to
the
Lords
,
in
taking
such
a
Fine
,
was
in
1638.
and
when
could
it
be
more
properly
remedied
then
in
1640.
except
it
be
expected
there
were
a
Prophetical
Spirit
of
Judgment
against
a
thing
not
in
being
;
there
were
94
Lords
present
;
and
the
Vote
was
Nemine
Contradicente
,
which
gives
it
as
great
an
Authority
as
any
Resolution
that
ever
was
.
The
King's
Counsel
were
not
heard
in
the
Case
of
Ship-money
,
nor
Knighthood-money
,
where
they
had
more
right
to
claim
to
be
heard
than
in
this
Case
.
To
conclude
,
a
Fine
is
a
Judgment
in
the
Common
Pleas
,
and
your
Lordships
Honours
are
not
triable
in
that
Court
below
in
Westminster-hall
;
but
if
this
Fine
be
allowable
,
they
must
be
triable
there
as
well
as
other
Inheritances
.
And
as
to
what
has
been
said
,
That
some
of
your
Lordships
sit
here
by
Remainders
,
and
they
are
in
danger
,
if
Honours
be
not
allowed
,
to
be
intailed
,
it
's
denied
;
and
if
they
be
intailed
,
it
's
not
of
the
same
nature
with
other
Inheritances
;
neither
doth
any
Lord
sit
here
by
Title
of
a
Remainder
,
but
by
Virtue
of
a
new
Grant
in
the
same
Patent
.
'T
was
afterwards
declared
,
That
the
Lords
Spiritual
and
Temporal
in
Parliament
assembled
,
upon
a
very
long
Debate
,
and
having
heard
his
Majesty's
Attorney
General
,
are
unanimously
of
Opinion
,
and
do
resolve
and
adjudge
that
no
fine
levied
,
or
at
any
time
hereafter
to
be
levied
to
the
King
,
can
bar
a
Peer's
Title
of
Honour
,
or
the
Right
of
any
Person
claiming
such
Title
under
him
that
levied
,
or
shall
levie
such
Fine
.
Duval
versus
Price
.
WRit
of
Error
on
a
Judgment
in
the
Court
of
Exchequer
affirmed
on
a
Writ
of
Error
before
the
Keeper
of
the
Great
Seal
,
&c.
in
an
Action
of
the
Case
for
Slander
:
The
Writ
was
to
this
Effect
,
Gullelmus
&
Maria
,
&c.
Thes.
&
Baronibus
de
Scaccario
suo
salutem
,
quia
in
recordo
&
processu
ac
etiam
in
redditione
judicij
loquelae
quae
fuit
in
Cur'
nostra
de
Scaccar'
coram
Baronibus
nostris
praed'
de
Scaccar'
nostro
praed'
per
Billam
inter
Edward
'
Price
Arm'
debitor'
nostr'
&
Johan'
Duvall
Arm'
de
quadam
transgression'
super
casum
eidem
Edwardo
per
praefat
'
Johannem
illat'
super
quo
judicium
in
Curia
nostra
de
Scaccar'
reddit'
fuit
pro
praefat
'
Edwardo
versus
dict'
Johann'
qua
quidem
record'
&
process'
causa
Erroris
intervenient'
in
Camera
Consilij
juxta
Scaccar'
vocat
'
le
Councel
Chamber
coram
Domino
Custod
'
Magni
Sigilli
Angliae
&
vobis
praefat'
Thes.
venire
facimus
&
jud'
inde
versus
praefat
'
Johann'
coram
,
&c.
affirmatum
est
,
&
quia
in
affirmatione
judicij
praed'
versus
praed
'
Johannem
coram
,
&c.
Error'
intervenit
manifestus
ad
grave
dampn'
ipsius
Johannis
sicut
ex
quaerela
sua
accepimus
,
quos
Error'
si
quis
fuerit
modo
debito
Corrigi
&
eidem
Johanni
plenam
&
Celarem
justitiam
fieri
volentes
in
hac
parte
,
vobis
Mandamus
quod
si
judicium
coram
praefat
'
&c.
affirmatum
est
,
tunc
record'
&
process'
tam
judicii
quam
affirmation'
praed'
cum
omnibus
ea
tangentibus
,
quae
coram
vobis
jam
resident'
ut
dicitur
nobis
in
Parliament'
nostro
,
viz.
17
die
Septembris
prox'
futur'
distincte
&
aperte
mittatis
&
hoc
Breve
,
ut
inspectis
record'
&
processu
praedict'
ulterius
inde
de
assensu
Dominor'
Spiritualium
&
Temporalium
in
eodem
Parliamento
Existent'
pro
Errore
illo
Corrigend
'
fieri
faciamus
,
quod
de
jure
&
secundum
legem
&
consuetudinem
Regni
nostri
Anglie
fuerit
faciend'
Teste
nobis
ipsis
apud
Westm'
8
Maii
Anno
6.
Record'
&
Process'
de
quibus
in
Brevi
de
Errore
huic
Schedule
annex'
specificat'
fit
mentio
,
sequitur
in
haec
verba
,
Placita
coram
Baron'
de
Scaccar
'
&c.
Midd'
Memorand'
quod
alias
scilicet
,
&c.
And
by
the
Bill
,
Price
complains
of
Duvall
,
praesent'
hic
in
Cur'
eodem
die
de
placito
transgr'
super
casum
pro
eo
,
viz.
quod
cum
he
was
a
good
Subject
,
and
free
from
all
Suspicion
of
Treason
,
and
was
a
Justice
of
Peace
in
Radnor
and
Montgomery-shire
,
and
well
performed
his
Duty
,
and
well-affected
to
the
King
and
Queens
Government
,
and
ready
to
oppose
all
their
Enemies
,
&c.
the
Defendant
maliciously
designing
to
prejudice
the
Plaintiff
,
and
to
bring
him
into
the
Displeasure
of
his
Prince
,
&c.
did
tali
die
&
anno
apud
Westm'
in
Com'
Midd'
habens
colloquium
of
the
said
Plaintiff
,
say
these
English
words
of
him
,
He
(
meaning
the
Plaintiff
)
is
disaffected
to
the
Government
,
(
the
Government
of
the
King
and
Queen
meaning
)
and
having
other
Discourse
of
the
Plaintiff
,
and
of
the
Government
of
the
King
and
Queen
,
did
say
of
the
said
Plaintiff
these
other
words
,
viz.
He
(
meaning
the
Plaintiff
)
is
disaffected
to
the
Government
,
(
the
said
Government
of
the
King
and
Queen
meaning
)
By
pretext
of
which
said
words
,
he
was
injured
in
his
Credit
,
and
fell
into
the
Displeasure
of
their
Majesties
;
and
his
Office
aforesaid
,
by
reason
thereof
,
did
totally
lose
,
and
remain'd
hitherto
daily
in
danger
of
a
severe
Prosecution
as
an
Enemy
to
the
King
,
&c.
ad
damp'
mill'
librar'
,
quo
minus
He
can
satisfie
the
King
and
Queen
the
Debts
he
owes
them
:
Et
inde
producit
sect
'
&c.
pleg
'
&c.
The
Defendant
pleads
Non
cul
,
Jury
find
pro
quaerent
'
,
and
assess
Damages
200
l.
and
Judgment
accordingly
;
posteaque
scil.
6
Julij
Anno
5.
iidem
Dominus
Rex
&
Domina
Regina
Mand
'
hic
Breve
de
Errore
Corrigend
'
sub
Magno
Sigillo
Anglie
Thes.
&
Baron'
de
Scaccar'
suo
direct'
in
haec
verba
,
directed
Thes.
&
Baronibus
suis
de
Scaccar'
suo
,
quia
in
recordo
&
processu
,
&c.
Error'
intervenit
manifestus
ad
grave
damp
'
&c.
sicut
ex
querela
sua
accepimus
,
ac
cum
in
31
Edw.
3.
inter
cetera
concordat'
&
stabilit'
fuit
,
quod
in
omnibus
casibus
Regem
aut
al'
personas
tangent'
ubi
quis
queritur
de
Errore
facto
in
Scaccario
Cancellar'
&
Thes.
Venire
fac'
coram
eis
in
aliquam
Cameram
Consilij
juxta
Scaccar'
record'
&
process'
hujusmodi
extra
dict'
Scacc'
&
assumptis
sibi
justic'
&
al'
peritis
tal'
qual'
sibi
videbitur
fore
assumend'
vocari
fac'
coram
eis
Barones
de
Scaccar'
praed'
ad
audiend'
Informationes
suas
&
causas
judicior'
suor'
&
super
hoc
negotium
hujusmodi
debite
facer'
Examinari
,
Et
si
quis
Error'
invent'
fuer'
illum
corrigend'
&
rotulos
Emendari
,
ac
postea
eos
in
dictum
Scaccar'
ad
Execution'
inde
faciend'
remitti
fac'
sicut
pertinet
,
prout
in
eodem
Statuto
plen'
Continent'
Nos
igitur
volentes
errorem
si
quis
fuit'
juxta
formam
Statuti
praed'
corrigi
&
partibus
praed'
plenam
,
&c.
Vobis
mandamus
quod
si
judicium
inde
reddit'
sit
,
hinc
record'
&
process'
praed'
cum
omnibus
ea
tangentibus
coram
Domino
Custod
'
Magni
Sigilli
Anglia
&
vobis
praefat'
Thes.
in
Camera
Consilij
juxta
Scaccar'
praed'
vocat
'
le
Councel
Chamber
die
Martis
,
viz.
31
Octobris
,
prox'
futur'
Venire
fac'
ut
idem
Dominus
Custos
Magni
Sigilli
Angliae
,
&
vos
praefat'
Thesaur'
Visis
&
Examinatis
,
&c.
ulterius
in
hac
parte
de
Concilio
Justiciar'
&
al'
peritor'
hujusmodi
Fieri
fac'
quod
de
jure
&
secund'
formam
Statut'
praed'
fuit
faciend'
Test'
nobis
ipsis
apud
W.
&c.
Ad
quem
diem
Martis
,
viz.
31
die
Octobris
coram
Johanne
Somers
Mil'
Domino
Custode
Magni
Sigilli
Angliae
(
nullo
Thesaur'
adtnuc
Existent'
)
hic
scil'
in
Camera
Consilij
apud
Westm'
praed'
venit'
praed
'
Johannes
Duvall
per
S.
A.
Attorn'
suum
.
Et
praed'
Thesaur'
&
Barones
record'
&
process'
praed'
cum
omnibus
ea
tangentibus
tunc
hic
Venire
faciunt
,
Et
super
hoc
the
said
J.
Duvall
assigns
the
General
Error
,
and
the
said
Price
pleads
In
nullo
est
Erratum
;
and
after
several
Curia
advisare's
,
and
days
given
,
super
hoc
visis
&
intellectis
omnibus
&
singulis
praemissis
per
praefat'
Dominum
Custodem
Magni
Sigilli
praed'
(
nullo
Thesaur'
adtunc
Existent'
)
maturaque
deliberatione
inde
habita
assumptis
sibi
J.
Holt
Mil'
Capital'
Justiciar
'
&c.
&
G.
Treby
Mil
'
&c.
Vocatisque
coram
eo
Baronibus
de
Scaccar'
praed'
auditisque
rationibus
Baronum
praed'
Visum
est
praefat'
Custodi
Magni
Sigilli
praed'
(
nullo
Thesaur'
adtunc
Existent'
)
de
Concilio
Justiciar'
praed'
quod
in
record'
aut
processu
praed'
vel
redditione
jud'
praed'
in
nullo
est
Erratum
Ideo
consideratum
est
per
praed'
Custodem
Magni
Sigilli
Anglie
(
nullo
Thesaur'
adtunc
Existent'
)
quod
judicium
praed'
in
omnibus
affirmatur
,
&c.
Upon
the
General
Error
assigned
here
in
the
Judgment
,
and
Affirmance
aforesaid
,
the
single
Query
was
,
If
these
words
,
He
is
disaffected
to
the
Government
,
be
actionable
?
And
it
was
argued
by
the
Counsel
for
the
Plaintiff
in
the
Writ
of
Error
,
that
they
were
not
,
because
they
are
general
and
uncertain
,
do
not
import
any
particular
Crime
which
exposes
to
any
particular
Penalty
,
and
they
carry
no
Reference
to
his
Office
;
and
tho'
he
be
alledged
to
be
a
Justice
of
the
Peace
,
yet
there
's
no
Colloquium
laid
concerning
his
Office
.
To
make
words
actionable
,
they
must
either
tend
to
the
Scandal
and
Discredit
of
the
Party
,
or
such
,
if
true
,
as
must
bring
Damage
to
the
Party
,
of
whom
they
are
spoken
:
otherwise
,
without
special
Damage
laid
and
proved
,
there
's
no
reason
for
the
Jury
to
give
Damages
,
because
he
suffers
none
.
In
ancient
time
these
Actions
were
rare
;
the
Year-Books
are
little
acquainted
with
them
;
and
tho'
latter
Ages
have
countenanced
them
,
yet
it
hath
been
under
certain
Rules
and
Limitations
,
as
that
they
ought
to
be
particular
and
clear
;
for
if
they
are
so
general
as
to
be
ambiguous
,
no
Action
is
warrantable
upon
them
;
and
therefore
they
must
be
of
a
single
and
known
Sense
,
and
such
against
which
no
other
Intendment
can
reasonably
be
admitted
;
Slander
raised
by
Argument
,
or
Implication
,
or
Inference
only
,
is
not
enough
to
maintain
an
Action
:
And
tho'
the
Causa
dicendi
be
not
inquirable
now
,
after
a
Jury
hath
found
them
spoken
as
laid
,
viz.
maliciously
,
yet
if
the
words
themselves
do
not
imply
Malice
and
Damage
,
the
use
of
those
Adverbs
which
are
commonly
mention'd
in
such
Declarations
,
will
not
alter
the
Case
;
for
Men
are
to
be
answerable
only
for
their
own
words
,
and
not
for
words
expounded
or
described
in
another
manner
than
the
Speaker
intended
:
Here
the
word
disaffected
is
none
of
the
plainest
;
nor
is
the
word
Government
much
plainer
;
the
first
is
only
a
Negative
,
and
to
say
He
is
not
affected
to
the
Government
,
goes
only
to
a
want
of
Zeal
,
or
an
indifference
of
Temper
,
and
doth
not
carry
in
it
any
treasonable
Intent
or
Purpose
,
much
less
any
Act
done
.
And
as
to
the
pretended
Special
Damage
,
in
the
loss
of
his
Prince's
Favour
,
or
incurring
his
Displeasure
,
that
is
such
an
Allegation
as
should
not
have
been
made
,
't
is
neither
mannerly
nor
justifiable
in
the
Plaintiff
to
affirm
such
a
thing
upon
Record
.
And
as
to
the
loss
of
his
Office
,
that
can
be
no
Damage
,
the
same
being
no
Place
of
Profit
,
but
meerly
of
burden
and
trouble
.
'T
was
further
urged
,
That
if
these
words
were
allowed
to
be
actionable
,
Tory
,
Whig
,
or
Jacobite
,
or
any
other
common
,
rude
,
uncertain
Terms
in
Discourse
might
pretend
to
it
,
according
to
the
respective
Turn
of
Times
,
and
consequently
no
Body
would
know
what
Discourse
is
allowable
:
As
ill
Tongues
were
to
be
corrected
,
so
care
is
to
be
had
of
Liberty
of
Speech
,
not
to
make
every
thing
a
Cause
of
Action
;
and
to
justifie
this
,
on
the
same
side
were
quoted
multitude
of
Cases
,
too
many
to
deserve
a
remembrance
.
It
was
argued
on
the
other
side
,
That
these
words
toucht
the
Person
in
the
most
tender
point
,
viz.
his
Loyalty
;
That
it
carried
Scandal
in
it self
,
not
to
be
zealously
affected
to
the
Government
,
which
protects
the
whole
;
that
it
was
equivalent
in
Common
Understanding
,
to
the
calling
him
Traytor
or
Rebel
:
That
this
was
much
more
,
than
affirming
one
not
to
be
a
good
Man
;
that
disaffected
implyed
somewhat
positive
;
it
's
meaning
was
,
that
the
Party
hath
an
aversion
,
a
fixed
,
settled
Enmity
to
the
Government
;
that
this
was
spoken
of
an
Officer
of
great
Trust
;
that
't
was
a
Reflection
upon
him
with
regard
to
his
Office
,
for
Loyalty
is
as
necessary
as
Justice
in
such
a
Post
;
that
to
slander
him
in
the
one
,
ought
to
be
as
actionable
as
to
slander
him
in
the
other
;
which
is
allowed
it
will
,
because
of
the
Reference
to
the
Office
in
the
nature
of
the
words
,
without
any
Special
Damage
:
that
to
deny
these
words
to
be
actionable
,
would
tend
to
encourage
Breaches
of
the
Peace
,
by
provoking
Challenges
,
&c.
for
that
,
if
Men
cannot
relieve
themselves
by
Law
,
they
will
be
tempted
to
do
it
of
themselves
in
other
methods
;
and
that
these
words
were
a
Reflection
on
the
Government
,
which
employed
Men
thus
disaffected
;
and
abundance
of
the
Common
Cases
upon
this
Subject
were
quoted
,
to
shew
what
words
would
bear
an
Action
in
respect
of
Officers
and
Allegiance
:
And
then
't
was
argued
strenuously
,
that
this
was
a
Special
Damage
,
viz.
to
lose
the
Prince's
Favour
,
which
every
Man
ought
to
covet
,
and
to
lose
a
Place
of
Honour
and
Command
,
both
which
the
Jury
have
Found
.
It
was
replyed
on
the
behalf
of
the
Plaintiff
in
the
Writ
of
Error
,
That
as
to
the
Reflection
on
the
Government
,
it
might
perhaps
warrant
an
Information
or
Indictment
,
but
not
an
Action
:
That
as
to
Challenges
,
there
were
vast
variety
of
words
which
are
reckoned
provocative
in
the
highest
degree
,
As
the
giving
the
Lie
,
calling
a
Man
a
Coward
,
and
the
like
,
and
yet
will
bear
no
Action
:
And
at
last
,
upon
Debate
,
the
Judgment
was
Reversed
.
John
Duvall
and
Elizabeth
his
Wife
,
Appellants
,
Versus
William
Terrey
of
London
Merchant
,
Respondent
.
THE
Appeal
was
to
be
relieved
against
a
Decree
in
Chancery
:
The
Case
was
,
That
the
Appellant
Elizabeth
had
entred
into
a
Bond
of
140
l.
Penalty
,
conditioned
for
the
payment
of
72
l.
on
the
Twentieth
of
April
1676.
and
by
reason
of
several
Promises
and
Delays
of
Payment
,
and
insisting
upon
Priviledge
,
and
other
like
Occasions
,
it
was
not
put
in
Suit
till
lately
,
and
then
the
Respondents
were
Arrested
:
And
upon
a
Declaration
,
the
Appellants
pleaded
Payment
at
the
Day
.
And
after
Issue
joyned
,
and
notice
of
Trial
,
upon
some
discovery
of
a
Defect
in
the
Evidence
to
prove
the
Bond
,
Motion
was
made
in
the
King's
Bench
to
alter
the
Plea
;
which
denied
,
a
Bill
was
preferred
in
Chancery
,
on
suggestion
that
Elizabeth
had
never
Executed
it
,
or
that
't
was
obtained
by
Fraud
,
and
that
there
was
no
Consideration
for
the
same
;
and
the
Respondent
preferred
a
Bill
,
praying
a
Discovery
if
such
Bond
,
&c.
Upon
Examination
of
Witnesses
,
and
after
publication
passed
,
the
Cause
was
heard
;
and
upon
the
hearing
,
't
was
ordered
,
That
the
Appellants
should
not
be
relieved
,
save
against
the
Penalty
of
the
Bond
;
and
that
it
be
referred
to
one
of
the
Masters
to
compute
the
Principal-money
and
Interest
due
thereon
,
and
to
tax
for
the
Respondent
,
his
Costs
,
both
at
Law
and
in
that
Court
;
and
that
what
should
be
found
due
for
the
Principal
,
Interest
,
and
Costs
,
be
paid
by
the
Appellants
at
such
Time
and
Place
as
the
Master
should
appoint
,
who
computed
the
Principal
and
Interest
at
154
l.
and
the
Costs
at
67
l.
and
to
be
paid
the
Twentieth
of
October
following
.
Upon
the
hearing
of
this
Appeal
,
there
were
two
Queries
made
,
1.
Whether
,
there
being
some
difference
in
and
about
the
proof
of
the
Bond
,
the
Court
ought
to
have
made
a
Decree
without
directing
a
Trial
at
Law
upon
the
validity
of
the
Bond
:
But
't
was
held
,
That
the
Bond
not
being
denied
in
pleading
upon
the
Issue
at
Law
,
the
Chancery
had
done
right
,
and
could
not
well
have
directed
any
other
Issue
than
what
the
Parties
themselves
had
joyned
in
at
Law
;
and
tho'
't
was
pretended
that
the
Attorney
ha●
pleaded
thus
without
direction
,
the
Court
did
not
much
regard
that
pretence
,
because
of
the
proper
Remedy
which
the
Law
gives
against
such
an
Attorney
,
if
the
pretence
were
true
,
and
therefore
they
did
not
much
consider
that
.
Another
Query
was
,
Whether
the
Court
of
Equity
could
justly
award
more
than
the
Penalty
?
and
objected
,
that
the
Order
being
to
save
against
the
Penalty
,
no
more
ought
to
have
been
decreed
.
But
't
was
said
,
That
notwithstanding
that
,
when
the
same
was
referred
to
a
Master
to
tax
Principal
and
Interest
,
the
Order
bound
the
Party
to
pay
both
,
tho'
it
amounted
to
more
than
the
Penalty
;
and
the
meaning
of
the
first
part
was
only
to
relieve
against
the
Penalty
,
in
case
the
Principal
and
Interest
came
to
less
than
the
Penal
Sum
;
especially
the
same
coming
to
be
heard
upon
cross
Bills
,
and
as
this
Case
was
circumstanced
,
after
such
delay
and
such
pleading
in
the
Court
of
King's
Bench
:
And
as
to
Costs
,
held
no
cause
for
an
Appeal
in
this
Case
;
nor
in
truth
was
it
ever
known
to
be
a
Cause
,
if
the
Merits
were
against
the
party
Appellant
.
And
so
the
Decree
was
affirmed
in
the
whole
.
William
Dolphin
and
Katharine
his
Wife
,
Appellants
,
Versus
Francis
Haynes
Respondent
.
APpeal
to
be
relieved
against
a
Decree
in
Chancery
made
by
the
Master
of
the
Rolls
,
Nov.
10.
1696.
The
Case
was
thus
,
That
one
Paris
Slaughter
of
London
,
being
Guardian
to
Katharine
the
Appellant
during
her
Infancy
,
he
placed
her
with
his
Kinsman
Chambers
Slaughter
near
Worcester
,
and
sometimes
boarded
her
in
that
place
for
her
Education
;
and
the
Respondent
and
the
said
P.S.
being
Correspondents
,
Paris
Slaughter
ordered
the
Respondent
to
pay
the
said
Chambers
what
Sums
should
be
called
for
upon
the
account
of
Katharine
:
In
pursuance
whereof
several
Sums
were
paid
upon
her
account
,
and
the
same
were
allowed
again
to
the
Respondent
by
P.
S.
The
Appellant
Katharine
having
just
attained
her
Age
,
she
came
to
the
Respondent
,
and
desired
more
Money
,
as
by
the
Order
of
P.
S.
and
accordingly
two
several
Sums
were
paid
her
,
and
Receipts
taken
from
her
,
as
by
the
Order
of
P.
S.
The
Appellant
Katharine
did
afterwards
come
to
an
account
with
P.
S.
which
was
fairly
stated
in
Writing
,
and
they
executed
General
Releases
each
to
the
other
:
But
the
said
two
Sums
,
not
being
entred
in
the
Books
of
P.
S.
were
not
accounted
for
by
the
Appellant
Katharine
;
and
the
Respondent
not
having
received
any
Allowance
from
P.
S.
in
his
Life
time
,
nor
having
,
as
he
thought
,
any
sufficient
Orders
to
charge
the
Executor
of
P.
S.
with
,
he
prefers
his
Bill
against
the
Appellants
,
and
by
her
Answer
she
own'd
the
Receipt
of
the
two
Sums
,
but
by
order
of
P.
S.
and
afterwards
,
upon
hearing
of
the
Cause
,
The
Court
declared
that
there
appearing
no
positive
orders
from
P.
S.
for
these
two
Sums
,
the
Appellants
ought
to
pay
the
Principal
,
Interest
,
and
Costs
:
And
a
Decree
was
made
accordingly
.
And
now
it
was
argued
on
the
behalf
of
the
Appellants
,
That
this
was
not
just
,
because
the
Respondent
never
paid
any
Money
to
any
Body
while
Katharine
boarded
with
him
,
or
afterwards
,
but
by
the
Order
and
upon
the
Credit
of
P.S.
and
charged
it
to
his
Account
;
and
the
Respondent
did
not
pretend
but
that
all
was
repaid
him
,
excepting
these
two
Sums
;
that
the
Respondent
and
Katharine
had
never
any
Account
or
Dealings
together
upon
her
Credit
;
and
't
is
to
be
presumed
that
the
Respondent
hath
charged
these
Sums
upon
the
Account
of
P.
S.
and
not
to
her
Account
,
because
the
Receipts
are
so
worded
;
and
that
Katharine
had
released
P.
S.
on
their
accounting
together
,
and
therefore
she
could
not
charge
the
Executor
of
P.
S.
On
the
other
side
,
it
was
argued
,
That
here
was
a
Badge
of
Fraud
in
the
Appellant
K
,
that
upon
her
Account
with
P.
S.
no
mention
was
had
of
these
Sums
;
that
the
Debt
was
originally
hers
;
that
she
was
obliged
to
pay
it
,
either
to
Slaughter
or
to
Haynes
;
that
not
having
paid
the
same
to
Slaughter
,
and
Slaughter
having
released
to
her
,
she
was
discharged
from
all
Demands
on
that
side
,
and
therefore
't
was
the
more
reasonable
it
should
be
answered
by
her
to
the
Respondent
;
that
tho'
the
Credit
might
be
at
first
given
to
Slaughter
,
yet
the
Money
being
paid
to
her
,
and
not
by
her
paid
to
Slaughter
,
Haynes
had
a
fair
Claim
against
her
,
even
to
avoid
circuity
of
Suits
;
for
if
this
were
otherwise
,
't
would
only
turn
Haynes
upon
the
Executor
of
Slaughter
,
and
that
Exeecutor
upon
Katharine
the
Appellant
again
in
Equity
to
set
aside
the
Release
,
and
to
have
an
allowance
of
these
Sums
;
and
that
in
Justice
and
Equity
the
Charge
was
placed
upon
the
proper
Party
,
who
at
first
was
the
Debtor
for
what
she
thus
received
:
And
accordingly
the
Decree
was
affirmed
.
Dormer
Sheppard
&
al'
versus
Joseph
Wright
&
al'
.
APpeal
from
a
Decree
of
Dismission
of
a
Bill
preferred
in
the
Court
of
Chancery
:
The
Case
was
thus
,
The
Appellants
did
in
the
Year
1693.
load
on
Board
the
Ship
Vnion
at
Gallipoly
210
Tuns
of
Oyls
,
of
which
Ship
the
Appellants
were
Owners
;
and
the
Respondents
loaded
on
Board
her
at
Messina
85
Bales
of
Silk
,
upon
Freight
by
Contract
both
to
be
delivered
at
London
.
The
Ship
homeward
bound
was
chased
into
Malaga
Mould
by
one
of
the
Thoulon
Fleet
,
who
were
three
or
four
days
in
sight
,
then
stood
in
for
that
Port
,
as
if
designed
to
attack
the
Fort
;
and
thereupon
the
Master
discoursed
the
Owner's
Factor
,
who
sent
him
off
a
Lighter
to
save
what
they
could
of
the
Ships
Cargo
;
and
because
the
Silk
was
of
the
greatest
value
,
the
Silk
was
put
on
board
the
Lighter
,
and
carried
ashore
;
and
to
come
at
the
Silk
,
(
for
it
lay
beyond
the
Oyls
)
they
were
forced
to
rummage
the
Ship
:
In
saving
of
which
,
and
some
small
part
of
the
Oyls
,
many
hours
were
spent
,
and
by
the
Seamen
only
,
and
at
Night
the
French
left
the
Port
,
whereupon
no
more
was
landed
.
But
about
six
days
afterwards
the
French
Fleet
appeared
again
before
Malaga
,
and
then
all
Endeavours
were
used
to
save
the
Oyls
,
but
were
prevented
by
the
Boats
which
the
French
Men
of
War
sent
into
the
Harbour
,
and
the
Enemy
forced
them
to
their
Guns
,
and
when
they
could
defend
the
Ship
no
longer
,
they
bored
holes
to
sink
her
,
but
the
Oyls
kept
her
from
sinking
,
and
the
French
took
her
,
and
carried
her
away
.
The
Bales
of
Silk
were
afterwards
put
on
board
another
Ship
,
and
delivered
to
the
Respondents
at
London
,
for
which
they
paid
the
Freight
,
&c.
The
Appellants
pretending
that
they
ought
to
have
a
share
of
the
Silk
which
was
saved
,
in
proportion
to
the
value
of
the
Ship
and
Oyls
which
were
lost
,
they
exhibited
their
Bill
in
Chancery
,
to
enforce
the
Respondents
to
come
to
an
Average
with
the
Appellants
for
the
loss
of
their
Ship
and
Oyls
.
And
after
Examination
of
Witnesses
,
on
the
hearing
of
the
Cause
,
the
Bill
was
dismissed
.
And
it
was
argued
on
the
behalf
of
the
Appellants
,
That
this
Dismission
was
not
justifiable
by
the
Rules
of
Equity
;
for
that
it
must
be
agreed
,
If
Goods
are
thrown
overboard
in
stress
of
Weather
,
or
in
danger
or
just
fear
of
Enemy
,
in
order
to
save
the
Ship
and
rest
of
the
Cargo
,
that
which
is
saved
shall
contribute
to
a
Reparation
of
that
which
is
lost
,
and
the
Owners
shall
be
Contributors
in
proportion
;
and
that
there
was
the
same
Reason
here
;
that
by
preferring
the
salvage
of
the
Silk
(
being
the
best
of
the
Cargo
)
before
the
Oyls
,
the
Owners
were
deprived
of
the
same
opportunity
for
the
salvage
of
the
Oyls
;
that
as
the
Sea-law
in
Extremity
directs
the
Master
to
preserve
the
best
of
his
Cargo
,
and
the
Goods
saved
ought
to
contribute
to
the
loss
of
the
Goods
Ejected
;
so
where
one
is
preferred
before
the
other
in
case
of
Extremity
,
there
being
not
time
to
land
the
whole
,
average
is
just
and
reasonable
.
And
as
to
the
six
days
time
,
there
was
then
no
apprehension
of
danger
,
and
consequently
the
Master
could
not
justifie
the
landing
of
any
thing
after
the
reason
of
their
Fears
were
removed
.
That
the
prudence
of
their
Master
in
saving
the
Silk
before
the
Oyls
,
ought
not
to
be
to
the
prejudice
of
the
Owners
interest
,
the
Oyls
lying
next
to
be
preserved
;
that
the
pretended
neglect
of
the
Master
,
in
not
landing
them
during
the
absence
of
the
Enemy
,
is
no
Excuse
,
because
then
there
was
no
danger
;
that
the
saying
that
the
loss
of
the
Ship
and
Oyls
did
not
contribute
to
the
salvage
of
the
Silks
,
is
no
reason
,
seeing
the
salvage
of
the
Silk
(
which
had
otherwise
been
lost
)
deprived
the
Owners
of
the
same
opportunity
for
the
salvage
of
the
other
Goods
;
that
in
such
Adventures
,
as
the
danger
is
common
,
so
ought
the
loss
or
damage
to
be
common
and
equal
;
that
the
Master
is
equally
intrusted
by
and
for
all
;
and
were
it
otherwise
,
it
had
been
the
Duty
,
and
will
be
the
Interest
of
all
Owners
of
Ships
to
order
their
Servants
in
Extremity
to
preserve
their
own
Goods
;
that
the
Silk
,
being
of
the
greatest
value
,
it
was
a
National
Service
,
to
preserve
that
before
the
Oyls
,
and
therefore
equitable
that
all
who
embark
in
the
same
Bottom
,
should
share
alike
in
the
Service
done
for
Salvage
,
&c.
And
further
,
that
if
in
Extremity
,
the
safety
of
the
best
of
the
Ships
Cargo
is
not
preferrable
before
that
of
the
meaner
value
,
it
will
be
of
ill
consequence
;
and
therefore
the
Sea-law
provides
first
for
the
Safety
of
the
best
of
the
Cargo
,
and
the
Master
acted
accordingly
and
that
't
is
the
Opinion
of
those
who
are
learned
in
the
Maritime
Laws
,
That
where
Freighters
Goods
are
equally
in
danger
,
and
a
like
opportunity
for
the
salvage
thereof
,
if
the
safety
of
the
one
be
preferred
,
and
the
other
comes
to
be
lost
,
such
preference
obliges
the
Goods
preserved
to
contribute
to
those
which
are
lost
;
it
being
a
General
Rule
in
Causes
Maritime
,
That
one
Man's
Interest
ought
not
to
suffer
for
the
Safety
of
anothers
.
On
the
other
side
,
it
was
argued
with
the
Decree
,
That
this
Pretence
was
new
;
that
't
was
a
Notion
unpresidented
;
that
the
Rule
of
Averidge
went
only
to
the
cases
,
where
the
loss
of
one
Man's
Goods
contributed
to
the
safety
of
anothers
,
as
by
Lightning
the
Vessel
,
&c.
and
not
to
this
Case
;
that
here
each
Man
was
to
undergo
the
Peril
of
his
own
Goods
;
that
in
case
of
Damage
to
Goods
within
the
Vessel
,
other
Goods
were
not
contributory
,
but
the
Owner
must
endure
his
own
loss
,
and
had
only
his
Remedy
against
the
Master
,
if
it
were
occasioned
by
his
Defect
or
Miscarriage
:
that
the
reason
of
Averidge
was
a
meritorious
Consideration
in
the
common
Case
,
because
there
the
loss
of
one
did
actually
save
the
other
;
but
here
was
no
such
thing
:
The
loss
of
these
Oyls
did
not
save
the
Silk
,
nor
did
the
saving
of
the
Silk
lose
the
Oyls
;
for
if
the
Silk
had
not
been
saved
,
the
Oyls
had
been
lost
,
for
they
were
so
bulky
that
they
could
not
easily
be
removed
without
further
time
;
and
if
part
only
be
saved
,
't
is
to
the
advantage
of
the
Owner
;
and
where
all
cannot
be
saved
at
a
time
,
the
Benefit
is
accidental
to
him
,
whose
Goods
the
Master's
discretion
directs
to
be
saved
:
And
in
this
case
here
was
no
such
Commodity
,
as
could
contribute
to
the
loss
of
a
Ship
,
if
it
had
been
kept
on
Board
;
for
the
Silk
,
if
on
Board
,
had
not
assisted
to
her
sinking
.
But
besides
,
here
were
six
or
eight
days
between
the
landing
of
the
Silk
and
the
seizing
of
the
Ship
by
the
French
,
in
which
time
all
the
Oyls
might
have
been
landed
,
and
thereby
both
them
and
the
Ship
saved
;
and
the
apprehension
of
the
Danger
could
not
so
soon
be
removed
by
losing
sight
of
the
Enemy
in
the
Morning
,
and
therefore
there
was
no
reason
for
the
Master
immediately
to
forbear
landing
his
Oyls
.
Therefore
't
was
prayed
that
the
Appeal
might
be
dismissed
,
and
the
same
was
accordingly
done
,
and
the
Decree
of
Dismission
below
affirmed
.
Whitfield
&
Ux'
&
al'
Appellants
,
versus
Paylor
&
Ux'
&
al'
Respondents
.
APpeal
from
a
Decree
in
Chancery
:
The
Case
was
thus
,
Sir
Lawrence
Stoughton
,
a
young
Baronet
in
Surrey
,
having
an
Estate
of
near
1000
l.
per
Annum
,
was
a
Servant
to
the
Respondent
Mary
,
the
Daughter
of
one
Burnaby
a
Brewer
,
reputed
to
be
very
rich
.
Upon
the
first
Proposal
of
Marriage
,
Burnaby
did
agree
to
give
5000
l.
certain
,
and
insisted
to
have
a
Jointure
of
500
l.
per
An.
settled
,
and
that
she
should
have
the
Inheritance
of
the
Jointure
,
if
he
died
without
Issue
.
Sir
Lawrence
did
refuse
to
agree
to
this
;
but
afterwards
he
renewed
the
Treaty
himself
,
and
accepted
of
Articles
for
payment
of
5000
l.
Portion
,
and
made
a
Settlement
of
a
Jointure
of
Lands
worth
500
l.
per
Annum
;
and
likewise
made
another
Deed
in
the
nature
of
a
Mortgage
of
all
his
Estate
,
as
well
the
Reversion
of
her
Jointure
as
the
rest
,
for
securing
the
payment
of
5000
l.
to
her
in
case
Sir
Lawrence
died
without
Issue
;
and
died
within
a
Fortnight
after
Marriage
,
without
Issue
.
The
Lady
Stoughton
prefers
her
Bill
,
and
prays
the
Appellants
might
be
fore-closed
of
the
Equity
of
Redemption
on
Failure
of
Payment
.
The
Appellants
exhibit
their
Bill
to
be
relieved
against
this
as
a
Fraud
;
and
upon
hearing
of
these
Causes
before
the
Master
of
the
Rolls
,
the
Appellants
were
decreed
to
pay
the
5000
l.
by
the
first
Day
of
Hillary
Term
,
1695.
without
Interest
,
but
with
Costs
:
And
in
default
,
the
estate
to
be
sold
to
raise
it
with
Interest
from
that
Day
:
And
upon
a
re-hearing
before
the
Lord
Keeper
,
his
Lordship
confirmed
the
Decrees
,
and
gave
a
Twelve-months
further
time
for
payment
.
And
now
it
was
argued
for
the
Appellant
,
That
it
was
proved
in
the
Cause
,
that
Sir
Lawrence
was
a
sickly
weak
Man
;
that
on
his
Death-bed
he
declared
he
had
made
no
such
Agreement
;
but
that
the
5000
l.
was
to
pay
his
Debts
,
and
no
part
of
it
was
to
return
to
his
Wife
,
and
his
Wife
present
,
and
not
contradicting
it
;
that
it
did
not
appear
,
that
he
had
any
Counterpart
of
this
Deed
,
or
that
he
ever
advised
or
acquainted
any
of
his
own
Relations
with
it
;
and
the
Draught
of
the
Deed
was
confessed
to
be
burnt
.
And
further
,
that
the
Agreement
in
its
own
nature
was
unreasonable
;
that
she
should
have
both
Portion
and
Jointure
;
and
that
one
was
a
merit
for
the
other
;
but
that
both
should
be
vested
in
the
same
Person
,
the
Portion
returned
,
and
the
Jointure
enjoyed
,
was
very
hard
,
and
therefore
to
be
set
aside
:
That
Equity
was
to
relieve
against
such
pretended
Agreements
,
as
things
done
without
any
Consideration
inducing
them
,
and
therefore
void
.
On
the
other
side
,
't
was
insisted
on
for
the
Decree
,
That
the
Man
was
of
Age
;
that
there
were
two
Treaties
of
Marriage
,
which
shews
a
deliberation
;
that
here
was
no
mis-representation
or
imposition
;
the
Bargain
in
it self
might
be
upon
good
reason
;
the
Gentleman
being
sickly
;
and
the
Money
was
to
be
returned
only
upon
a
Contingency
of
his
dying
without
Issue
;
that
in
case
of
his
having
Issue
,
the
Agreement
was
common
;
that
perhaps
she
had
the
worst
on
't
under
all
Circumstances
;
that
all
Bargains
are
not
to
be
set
aside
,
because
not
such
as
the
wisest
People
would
make
;
but
there
must
be
Fraud
to
make
void
their
Acts
;
and
his
forgetting
that
he
had
done
such
an
Act
,
when
on
his
Death-bed
,
is
no
reason
for
to
annul
it
;
and
the
Marriage
had
been
a
good
Consideration
for
a
Jointure
of
it self
:
And
reasonable
or
unreasonable
is
not
always
the
question
in
Equity
,
if
each
Party
was
acquainted
with
the
whole
,
and
meant
what
they
did
;
much
less
is
it
sufficient
to
say
that
't
was
unreasonable
as
it
hapned
in
event
;
for
if
at
the
time
't
was
a
tolerable
Bargain
;
nay
,
if
at
the
time
this
Bargain
was
the
meaning
of
the
Parties
,
and
each
knew
what
was
done
,
and
neither
was
deceived
,
the
same
must
stand
:
And
accordingly
the
Decree
was
affirmed
.
Thomas
Arnold
Appellant
.
Versus
-
Mr.
Attorney
General
,
Respondents
.
-
Matthew
Johnson
Esq
;
Respondents
.
-
Thomas
Bedford
Gent.
Respondents
.
APpeal
from
a
Decree
in
Chancery
:
The
Case
was
thus
,
One
Edmund
Arnold
Proctor
,
being
seized
in
Fee
of
the
Mannor
of
Furthoe
to
the
yearly
value
of
240
l.
per
Annum
,
and
also
of
some
Personal
Estate
;
but
having
no
Child
or
Brother
living
,
made
his
Will
in
writing
,
and
thereby
,
amongst
other
Legacies
,
to
many
other
Persons
,
he
gave
to
the
Appellant
,
by
the
Name
of
his
Kinsman
Thomas
Arnold
,
the
Sum
of
40
s.
all
to
be
paid
out
of
his
Personal
Estate
;
and
then
proceeds
in
these
words
,
Being
determined
to
settle
for
the
future
,
after
the
death
of
me
and
my
Wife
,
the
Mannor
of
Furthoe
,
with
all
the
Lands
,
Woods
,
and
Appurtetenances
to
charitable
Vses
.
I
devise
my
Mannor
of
Furthoe
,
with
the
Appurtenances
,
unto
Sir
Lionel
Jenkins
Kt.
William
Dyer
,
Matthew
Johnson
,
and
Thomas
Bedford
,
and
to
their
Heirs
and
Assigns
for
ever
,
upon
trust
,
that
they
or
their
Assigns
,
after
the
death
of
him
and
his
Wife
should
pay
and
deliver
yearly
for
ever
,
several
particular
Sums
to
Charitable
Vses
therein
mentioned
:
All
the
Particulars
amounting
in
the
whole
to
120
l.
per
Annum
,
and
charged
nothing
further
on
the
said
Mannor
,
but
the
Expences
of
the
Trustees
in
the
Execution
of
the
said
Trust
.
The
said
Arnold
soon
affter
died
;
the
Wife
is
also
since
dead
.
Sir
Lionel
Jenkyns
and
William
Dyer
also
dead
.
In
Trinity
1692.
the
Attorney
General
prefers
a
Bill
against
the
Appellant
as
Heir
at
Law
to
settle
and
establish
the
said
Charities
,
and
to
enforce
the
Trustees
to
act
or
to
transfer
their
trust
Estate
.
To
which
they
answer
,
and
the
Heir
by
his
Answer
claimed
as
Heir
at
Law
,
the
Surplus
of
the
Charity
Estate
over
and
above
what
would
satisfie
the
yearly
Payments
expressed
in
the
Will
,
and
the
Charges
of
executing
the
said
Trust
;
upon
a
Reference
to
a
Master
,
to
ascertain
the
Court
of
the
yearly
value
of
the
Mannor
;
he
reports
it
worth
240
l.
per
Annum
,
and
worth
the
same
at
the
time
of
making
the
Will
.
And
on
hearing
the
Cause
,
the
Court
declared
,
That
all
the
Profits
of
the
Premisses
,
ought
by
the
purport
and
intention
of
the
Will
,
to
be
applied
to
the
Charities
therein
mentioned
;
and
that
the
Appellant
Arnold
the
Heir
at
Law
is
totally
excluded
from
the
Surplus
,
with
direction
how
the
Surplus
should
go
in
augmentation
of
some
of
the
Charities
;
nevertheless
,
in
case
the
Appellant
should
Seal
and
Execute
to
the
Trustees
a
Release
and
Conveyance
of
the
Premisses
,
according
to
the
Decree
,
then
he
to
have
his
Costs
out
of
the
Sale
of
Timber
,
and
that
the
Trustees
be
indempnified
.
And
it
was
argued
on
behalf
of
the
Appellant
,
That
this
Decree
was
not
equitable
.
Some
Questions
were
made
about
the
distribution
of
the
Surplus
amongst
only
some
of
the
Charities
,
and
about
the
value
;
but
a
Surplus
was
agreed
to
be
in
the
Case
;
and
't
was
chiefly
insisted
upon
,
that
the
Surplus
ought
to
go
and
be
to
and
for
the
use
of
the
Heir
at
Law
;
for
that
the
Estate
is
not
increased
by
any
subsequent
or
accidental
Improvement
,
and
so
not
like
the
Case
of
Thetford
School
;
but
here
at
the
time
of
making
the
said
Will
,
was
,
and
now
is
,
of
a
good
value
beyond
the
Sums
given
,
and
was
so
known
to
be
by
the
Testator
;
and
the
particular
Charities
given
by
the
Testator
are
particularly
and
expresly
named
and
limited
,
and
do
amount
only
to
so
much
,
as
is
less
than
the
value
of
the
Land
;
and
thS
urplus
is
not
disposed
of
,
and
consequently
ought
to
be
the
Heirs
:
For
as
at
the
Common
Law
in
a
Will
,
what
is
not
given
away
must
descend
,
whether
you
speak
of
Land
,
or
the
interest
in
it
;
so
in
Equity
,
whatsoever
Trust
,
or
part
of
a
Trust
,
is
not
declared
and
expressed
,
the
same
shall
be
for
the
benefit
of
the
Representative
of
the
Testator
,
either
Heir
or
Executor
,
as
the
Case
may
happen
:
Then
these
Bequests
or
Devises
being
particular
and
express
,
they
do
and
will
controul
and
expound
,
nay
restrain
and
qualifie
the
meaning
of
general
precedent
words
:
That
Expression
of
his
being
determined
to
settle
his
Mannor
to
charitable
Uses
,
will
be
qualified
by
the
Particulars
afterwards
,
as
is
Nokes's
Case
in
4
Rep.
and
many
others
in
the
Books
.
Besides
,
't
is
not
accompanied
with
any
term
of
Universality
,
that
excludes
the
Construction
contended
for
;
and
if
it
had
been
so
largely
expressed
,
those
general
words
of
his
designing
to
settle
the
whole
,
may
be
intended
only
as
a
Security
,
that
the
particular
Charities
may
be
certainly
answered
:
And
by
such
Construction
all
the
words
of
the
Will
may
be
satisfied
;
and
then
the
Trustees
may
convey
the
Premisses
to
the
Heir
at
Law
,
and
take
Security
for
the
same
,
saving
and
reserving
all
the
said
Charities
devised
,
with
all
reasonable
Charges
and
Deductions
,
without
prejudice
to
the
Will
of
the
Testator
,
or
to
the
said
Estate
,
which
must
nevertheless
be
liable
to
answer
and
make
good
the
same
;
so
that
there
can
be
no
Damage
done
to
any
of
the
Parties
or
Interests
concerned
,
by
this
Construction
;
nay
,
it
is
the
adding
a
further
Security
for
their
payment
.
Now
it
is
plain
,
he
designed
the
Sums
given
to
the
particular
Uses
,
and
no
more
,
for
that
they
are
all
so
particular
and
express
;
and
it
is
pursuant
to
the
Rules
of
Law
and
Equity
,
in
all
doubtful
Cases
,
to
adjudge
in
favour
of
the
Heir
at
Law
,
and
not
to
extend
the
general
words
of
a
Will
,
to
enlarge
a
Charity
beyond
the
intent
expressed
,
especially
against
a
near
Relation
and
Heir
,
as
this
is
,
viz.
his
Brother's
Son
.
Besides
,
the
Testator
was
bred
a
Civilian
,
and
as
such
,
knew
how
fully
to
express
himself
,
if
he
had
intended
the
Overplus
to
go
in
increase
of
the
Charity
:
Or
if
he
had
intended
them
more
then
is
mentioned
,
he
would
have
declared
himself
in
such
manner
as
should
exclude
all
doubt
.
On
the
other
side
,
it
was
argued
,
That
the
Testator's
intent
plainly
appeared
by
his
Will
to
dispose
all
his
Estate
wholly
to
charitable
Uses
;
and
that
the
words
of
the
Will
were
sufficient
to
carry
the
whole
Estate
to
that
purpose
;
and
that
it
did
not
appear
by
his
Will
,
that
't
was
his
intent
to
give
his
Heir
at
Law
any
thing
out
of
his
Real
Estate
;
that
his
determination
to
settle
his
Mannor
,
with
the
Appurtenances
,
was
to
settle
the
whole
;
that
what
is
not
disposed
of
in
Particulars
,
is
to
be
directed
by
the
Court
of
Chancery
;
that
that
Court
hath
done
right
in
directing
it
in
augmentation
of
the
Charities
mentioned
,
because
the
Testator's
intent
was
most
in
favour
of
those
which
are
so
mentioned
:
That
if
the
Query
were
askt
,
What
shall
be
done
with
the
Surplus
,
if
any
?
The
Answer
is
natural
,
viz.
I
am
determined
to
settle
the
Mannor
,
that
is
the
whole
,
on
Charitable
Uses
:
That
the
Testator
by
his
Will
expressed
some
Care
for
his
Sister
,
and
for
John
Boncher
his
Nephew
,
and
other
his
near
Relations
;
but
neither
by
any
Expression
or
Implication
,
pointeth
at
any
provision
designed
for
his
Heir
at
Law
;
but
for
the
Excluding
him
of
all
Pretences
,
hath
bequeathed
him
40
s.
and
no
more
:
that
the
other
is
to
contradict
his
plain
Intent
;
't
is
to
make
a
new
Will
for
him
,
contrary
to
the
determination
which
he
saith
he
had
made
:
And
accordingly
the
Decree
was
affirmed
.
Sir
Richard
Dutton
Plaintiff
,
Versus
Richard
Howell
,
Richard
Grey
,
and
Robert
Chaplain
,
Executors
of
Sir
John
Witham
deceased
.
WRit
of
Error
on
a
Judgment
given
in
B.
R.
for
Sir
John
Witham
and
Sir
Richard
Dutton
,
and
the
Award
of
Execution
thereof
upon
Scire
Fac
'
brought
by
the
Defendants
,
as
Executors
of
Sir
John
Witham
;
and
affirmed
in
the
Exchequer
Chamber
in
Trespass
and
False
Imprisonment
.
The
Case
on
the
Record
was
thus
;
The
Plaintiff
William
did
declare
versus
Dutton
,
for
that
he
with
Sir
Robert
Davis
Baronet
,
Sir
Timothy
Thornhill
,
Henry
Walrond
,
Thomas
Walrond
,
and
Samuel
Rayner
,
did
14
Octob.
36
Car.
2.
at
L.
in
Par'
&
Ward
'
&c.
assault
,
beat
,
and
wound
the
Plaintiff
,
and
imprisoned
him
,
and
his
Goods
then
found
did
take
and
seize
,
and
the
Plaintiff
in
Prison
,
and
the
Goods
and
Chattels
from
the
Plaintiff
did
detain
and
keep
for
three
Months
next
following
,
by
which
the
Plaintiff
lost
the
Profit
he
might
have
made
of
his
Goods
,
and
was
put
to
Charges
,
&c.
Contra
pac'
&
ad
damp
'
13000
l.
The
Defendant
pleads
Not
Guilty
as
to
the
Venir'
vi
&
armis
,
and
all
the
Assault
,
Imprisonment
,
and
Deteiner
in
Prison
before
the
Sixth
of
November
,
and
after
the
Twentieth
of
December
in
the
same
Year
;
and
as
to
the
beating
,
and
wounding
,
and
taking
,
seizing
and
detaining
his
Goods
,
and
thereupon
Issue
is
joyned
;
and
as
to
the
assault
,
taking
and
imprisoning
the
Plaintiff
the
Sixth
of
November
,
and
detaining
him
from
thence
until
in
and
upon
the
Twentieth
of
December
.
The
Defendant
doth
justifie
,
for
that
long
before
,
viz.
the
28th
of
Octob.
32
Car.
2.
by
his
Letters
Patents
shewn
to
the
Court
,
did
constitute
and
appoint
the
Defendant
his
Captain
General
and
Chief
Governour
in
and
upon
the
Islands
of
Barbadoes
,
and
&c.
and
the
rest
of
the
Islands
lying
,
&c.
and
thereby
commanded
him
to
do
and
execute
all
things
that
belonged
to
that
Government
,
and
the
Trust
in
him
reposed
,
according
to
the
several
powers
and
directions
granted
to
the
Defendant
by
the
Letters
Patents
,
and
Instructions
with
them
given
;
or
by
such
other
powers
or
instructions
as
at
any
time
should
be
granted
or
appointed
the
Defendant
under
the
King's
Sign
Manual
,
and
according
to
the
reasonable
Laws
,
as
then
were
,
or
after
should
be
made
by
the
Defendant
,
with
advice
and
consent
of
the
Councel
and
Assembly
of
the
respective
Islands
:
appoints
twelve
Men
by
name
,
viz.
Sir
P.
L.
H.
D.
H.
W.
S.
N.
T.
W.
J.
Witham
the
Plaintiff
,
J.
P.
J.
S.
R.
H.
E.
S.
T.
W.
and
H.
B.
to
be
of
the
King's
Counsel
of
the
Island
,
during
the
pleasure
of
the
King
,
to
be
assistant
to
the
Defendant
with
their
Counsel
in
the
management
of
the
Things
and
Concerns
of
the
Government
of
the
said
Island
,
in
relation
to
the
King's
Service
and
good
of
his
Subjects
there
,
and
gives
power
to
the
Defendant
,
after
he
himself
had
taken
the
Oath
of
Office
,
to
administer
to
every
Member
of
the
Councel
and
Deputy
Governour
the
Oaths
of
Allegiance
and
Supremacy
,
and
the
Oath
of
Office
:
with
further
power
to
the
Governour
,
by
advice
and
consent
of
Counsel
,
to
summon
and
hold
a
General
Assembly
of
the
Freeholders
and
Planters
there
,
and
to
make
Laws
,
Statutes
,
and
Ordinances
for
the
good
Government
of
the
Island
,
and
to
be
as
near
and
consonant
,
as
convenlently
may
,
to
the
Laws
and
Statutes
of
England
,
which
Laws
were
to
be
transmitted
,
to
be
allowed
by
the
King
here
;
with
power
also
,
by
advice
and
consent
of
Counsel
,
to
erect
and
establish
such
and
so
many
Courts
of
Judicature
,
as
he
shall
think
fit
for
hearing
and
determining
all
Causes
,
as
well
Criminal
as
Civil
,
according
to
Law
and
Equity
,
and
to
appoint
Judges
,
Justices
of
Peace
,
Sheriffs
,
and
other
necessary
Officers
,
for
administring
of
Justice
,
and
putting
the
Laws
in
execution
,
provided
Copies
of
such
Establishments
be
transmitted
to
the
King
to
be
allowed
;
and
with
further
power
to
the
Governour
to
constitute
and
appoint
Deputy
Governours
in
the
respective
Islands
and
Plantations
,
which
then
were
,
or
should
be
under
his
Command
,
to
all
and
every
which
respective
Governours
,
the
King
by
these
Letters
Patents
gave
power
and
authority
to
do
and
execute
what
should
be
commanded
them
by
the
Governour
,
according
to
the
power
granted
to
him
by
this
Commission
:
And
the
Governor's
Authority
to
continue
during
the
good
will
and
pleasure
of
the
King
.
The
Defendant
further
pleads
,
That
after
the
making
of
the
Letters
Patents
,
and
before
the
time
of
the
Assault
and
Imprisonment
,
viz.
1
Mart.
33
Car.
2.
he
arrived
at
Barbadoes
,
and
by
virtue
of
the
Letters
Patents
aforementioned
,
he
took
upon
him
and
exercised
the
Government
of
that
and
the
other
Islands
,
and
continued
to
do
so
till
the
first
of
May
,
35
Car.
2.
when
he
had
license
to
return
to
England
.
That
he
,
before
his
departure
,
by
virtue
of
the
said
Letters
Patents
,
by
a
certain
Commission
under
his
Hand
and
Seal
,
did
constitute
the
Plaintiff
,
in
his
absence
,
to
be
his
Deputy
Governour
in
the
said
Islands
of
Barbadoes
,
to
do
and
execute
the
Powers
and
Authorities
granted
to
the
Defendant
by
the
said
Letters
Patents
.
That
the
first
of
August
following
,
the
Defendant
arrived
at
London
in
England
,
that
the
fourth
of
May
,
35
Car.
2.
after
the
Defendants
departure
,
the
Plaintiff
took
upon
himself
the
Administration
of
the
Government
of
the
Island
of
Barbadoes
;
that
the
Plaintiff
,
not
regarding
the
Trust
reposed
in
him
by
the
Defendant
,
nor
the
Honour
of
that
Supreme
Place
and
Office
,
did
unlawfully
and
arbitrarily
execute
that
Government
and
Office
to
the
Oppression
of
the
King's
Subjects
,
viz.
apud
Lond'
praed'
in
Par'
&
Ward'
praed'
.
That
after
the
Return
of
the
Defendant
to
the
Barbadoes
,
viz.
6
Nov.
35
Car.
2.
at
a
Councel
holden
,
for
the
Island
of
Barbadoes
,
at
St.
Michael's
Town
,
before
the
Defendant
H.
W.
J.
P.
E.
S.
T.
W.
F.
B.
which
five
are
of
the
twelve
named
Councel
in
the
Letters
Patents
,
and
Sir
Timothy
Thornhill
and
Robert
Dawes
,
Counsel
for
the
Island
aforesaid
,
the
Plaintiff
then
and
there
was
charged
,
that
he
in
the
absence
of
the
Defendant
misbehaved
himself
in
the
Administration
of
the
Government
of
the
said
Island
;
Non
tantum
,
in
not
taking
the
usual
Oath
of
Office
,
and
not
observing
the
Act
of
Navigation
:
And
by
his
illegal
assuming
the
Title
of
Lieutenant
Governour
,
and
altering
and
changing
Orders
and
Decrees
made
in
Chancery
of
the
said
Island
,
according
to
his
own
will
and
pleasure
,
at
his
own
Chamber
,
and
altering
the
Sense
and
Substance
of
them
,
from
what
was
ordered
in
Court
by
and
with
the
consent
of
the
Councel
:
upon
which
it
was
then
and
there
ordered
in
Councel
,
by
the
Defendant
and
Councel
,
that
the
Plaintiff
Sir
John
Witham
should
be
committed
to
,
&c.
until
he
should
be
discharged
by
due
Course
of
Law
:
by
virtue
of
which
Order
the
Plaintiff
,
the
said
sixth
of
Nov.
was
taken
,
and
detained
until
the
20th
of
Dec.
upon
which
day
he
was
brought
to
the
Court
of
the
General
Sessions
of
Oyer
and
Terminer
,
and
then
by
Court
recommitted
,
which
is
the
same
Assault
,
Taking
,
and
Imprisonment
,
and
Traverses
absque
hoc
,
that
he
was
guilty
of
the
Assaulting
,
Taking
,
or
Imprisoning
him
within
the
time
last
mentioned
at
London
,
or
elsewhere
then
in
the
Isle
of
Barbadees
,
or
otherwise
,
or
in
other
manner
then
as
before
.
The
Plaintiff
demurred
,
and
the
Defendant
joyn'd
in
Demurrer
,
and
Judgment
was
given
for
the
Plaintiff
;
and
a
Venire
awarded
tam
ad
triand'
exitum
quam
ad
inquirend'
de
dampnis
,
&c.
and
the
Issue
was
found
pro
quaerent
'
,
and
6
d.
Damages
,
and
on
the
Demurrer
500
l.
Damages
,
and
Judgment
for
Damages
and
Costs
amounting
in
the
whole
to
590
l.
The
Plaintiff
,
Sir
J.
Witham
,
dying
,
Trin.
2
Wil.
&
Mar.
the
Judgment
was
revived
by
Scire
Facias
brought
by
Howel
,
Gray
,
and
Chaplain
,
Executors
of
Sir
J.
W.
quoad
omnia
bona
&
catalla
sua
,
except
one
Debt
due
by
Bond
from
Henry
Wakefield
.
And
at
the
Return
of
the
Scire
Fac
'
,
the
Defendant
appears
and
demurs
to
the
Scire
Facias
,
and
there
is
an
Award
of
Execution
,
and
thereupon
a
Writ
of
Error
is
brought
in
the
Exchequer
Chamber
,
and
the
Judgment
was
affirmed
.
Then
a
Writ
of
Error
is
brought
in
Parliament
,
and
the
General
Error
assigned
.
And
here
it
was
argued
on
the
behalf
of
the
Plaintiff
in
the
Writ
of
Error
,
that
this
Action
did
not
lye
against
him
,
because
it
was
brought
against
him
for
that
which
he
did
as
a
Judge
,
and
so
it
appeared
on
the
Record
,
according
to
12
Rep.
25.
that
the
Rule
seems
the
same
for
one
sort
of
Judge
,
as
well
as
for
another
;
that
this
Person
was
lawfully
made
a
Governour
,
and
so
had
all
the
Powers
of
a
Governour
;
that
this
was
a
Commitment
only
till
he
found
Security
,
tho'
not
so
Expressed
;
that
this
is
not
counsable
here
in
Westminster-hall
;
that
he
was
only
censurable
by
the
King
;
that
the
Charge
is
sufficient
,
in
that
Sir
J.
W.
had
not
taken
the
Oaths
;
that
male
&
arbitrarie
executus
fuit
,
is
Charge
enough
to
warrant
a
Commitment
;
that
this
was
a
Charge
before
a
Councel
of
State
,
and
there
need
not
be
all
the
Matters
precisely
alledged
to
justifie
their
Acts
;
and
by
the
same
reason
Actions
may
lye
against
the
Privy
Counsellors
here
,
and
enforce
them
to
set
forth
every
particular
,
which
would
be
of
dangerous
Consequence
;
the
Plea
might
have
been
much
shorter
,
as
only
that
he
was
committed
by
a
Counsel
of
State
,
and
the
addition
of
the
other
Matters
shall
not
hurt
;
and
that
the
Charge
was
upon
Oath
shall
be
intended
;
no
Presumption
shall
be
,
that
the
Supream
Magistracy
there
did
irregularly
;
't
is
a
power
incident
to
every
Council
of
State
to
be
able
to
commit
:
This
action
cannot
lye
,
because
the
Fact
is
not
triable
here
;
the
Laws
there
may
be
different
from
ours
.
Besides
no
Action
lies
unlefs
't
were
a
malicious
Commitment
,
as
well
as
causeless
:
and
that
no
Man
will
pretend
that
an
Action
can
lye
against
the
chief
Governour
or
Lieutenant
of
Ireland
or
Scotland
,
and
by
the
same
reason
it
ought
not
in
this
Case
;
he
had
a
power
to
make
Judges
,
and
therefore
he
was
more
than
a
Judge
;
and
they
have
confessed
all
this
Matter
by
the
Demurrer
.
The
Statute
of
Car.
1.
which
restrains
the
power
of
our
Councel
of
State
,
supposes
that
they
could
Commit
;
that
in
case
of
Crimes
there
they
are
punishable
in
that
place
;
and
in
Sir
Ellis
Ashburnham's
Case
there
was
a
Remanding
to
be
tried
there
,
and
if
so
,
it
can't
be
examinable
here
;
and
if
not
,
this
Action
will
not
lye
.
And
further
,
that
what
was
done
here
,
was
done
in
a
Court
;
for
so
is
a
Councel
of
State
to
receive
Complaints
against
State
Delinquents
,
and
to
direct
their
Trials
in
proper
Courts
afterwards
;
that
there
was
never
such
an
Action
as
this
maintain'd
;
and
if
it
should
,
it
would
be
impossible
for
a
Governour
to
defend
himself
:
First
,
For
that
all
the
Records
and
Evidences
are
there
.
2.
The
Laws
there
differ
from
what
they
are
here
;
and
Governments
would
be
very
weak
,
and
the
Persons
intrusted
with
them
very
uneasie
,
if
they
are
subject
to
be
charged
with
Actions
here
for
what
they
do
in
those
Countries
,
and
therefore
't
was
prayed
that
the
Judgment
should
be
reversed
.
On
the
other
side
,
't
was
argued
for
the
Plaintiff
in
the
Original
Action
,
That
this
Action
did
lye
,
and
the
Judgment
on
't
was
legal
:
That
supposing
the
Fact
done
in
England
,
the
Plea
of
such
Authority
so
executed
at
Plymouth
,
or
Portsmouth
,
or
the
like
,
had
been
ill
;
for
that
Liberty
of
Person
by
our
Law
is
so
sacred
,
that
every
Restraint
of
it
must
be
justified
by
some
lawful
Authority
,
and
that
Authority
must
be
expresly
pursued
:
That
here
was
no
Authority
to
commit
;
for
that
must
be
either
as
a
Court
of
Record
,
or
as
Justices
of
Peace
,
Constable
,
or
other
Officer
constituted
for
that
purpose
;
that
the
Letters
Patents
are
the
only
Justification
insisted
on
,
and
that
gives
none
;
't
is
true
,
the
power
of
Committing
is
incident
to
the
Office
of
a
Court
;
here
's
only
the
Government
of
the
Place
committed
to
Sir
Richard
Dutton
,
with
a
power
to
erect
Courts
,
and
appoint
Officers
,
but
none
to
himself
:
He
in
Person
is
only
authorized
to
manage
and
order
the
Affairs
;
and
the
Law
of
England
takes
no
notice
of
such
an
Officer
,
or
his
Authority
;
and
therefore
a
Court
of
Law
can
take
notice
of
it
,
no
further
,
or
otherwise
,
then
as
it
doth
appear
in
pleading
:
The
Councel
is
not
constituted
a
Court
;
they
are
by
the
Letters
Patents
only
to
advise
and
assist
the
Governour
;
and
the
Governour
hath
no
power
to
commit
or
punish
,
but
to
form
and
establish
Courts
to
do
so
;
which
imports
the
direct
contrary
,
that
he
had
no
such
power
:
The
Ends
of
appointing
the
Councel
,
as
mentioned
in
the
Letters
Patents
,
are
quite
different
,
viz.
to
aid
the
Regent
by
their
Advice
,
not
to
act
as
of
themselves
;
and
if
neither
the
Governour
of
himself
,
nor
the
Councel
of
it self
,
had
such
a
power
,
neither
can
both
together
have
it
:
A
Court
of
Justice
is
not
to
be
intended
,
unless
the
same
be
specially
shewn
:
Excepting
the
Case
of
the
common
known
general
Courts
of
Justice
in
Westminster-hall
,
which
are
immemorial
;
if
any
thing
be
justified
by
the
Authority
of
other
Courts
,
the
same
must
be
precisely
alledged
,
and
how
their
Commencement
was
,
either
by
Custom
or
Letters
Patents
:
Here
it
appears
by
the
Plea
it self
,
that
they
had
Justices
of
Oyer
and
Terminer
appointed
:
It
doth
not
appear
that
he
or
the
Councel
were
Judges
of
things
of
this
kind
.
Besides
,
when
a
Councel
is
constituted
,
as
here
was
Twelve
by
Name
,
that
must
be
the
Majority
,
as
is
the
Dean
and
Chapter
of
Femes
Case
,
Davis's
Rep.
47.
and
that
's
Seven
at
least
,
which
are
not
in
this
Case
.
There
must
be
a
Majority
,
unless
the
Erection
did
allow
of
a
less
Number
.
The
practise
of
the
Courts
of
Westminster-hall
do
not
contradict
this
,
for
there
't
is
a
Court
,
whether
more
or
less
,
and
so
it
hath
been
time
out
of
Mind
.
But
here
's
a
new
Constitution
;
and
the
Rule
holds
so
in
Commissions
of
Oyer
and
Terminer
,
if
the
direction
be
so
:
as
is
the
Case
in
Plowden
384.
the
Earl
of
Leicester's
Case
.
If
a
Mayor
and
three
Aldermen
have
Conusance
of
Pleas
,
what
a
Mayor
and
two
does
is
null
and
void
.
And
if
there
be
no
direction
in
particular
for
the
number
,
the
Law
requires
the
majority
.
So
that
here
was
no
Councel
,
because
but
five
of
them
present
.
The
Councel
have
not
the
power
,
but
the
Governour
with
the
Advice
and
Assent
of
the
Councel
;
and
so
ought
their
pleading
to
have
been
according
to
their
Case
;
That
if
a
Man
justifies
as
a
Judge
to
excuse
him
from
an
Action
,
he
must
set
forth
his
Authority
,
and
the
Cause
must
appear
to
be
within
his
Conusance
;
and
so
are
multitudes
of
Cases
,
3
Cro.
130.
2
Leon.
pl.
43.
and
1
Cro.
153
,
557
,
579
,
593.
12
Rep.
23
,
25.
Mod.
Rep.
119.
But
taking
it
as
a
Councel
,
neither
Person
nor
Thing
are
within
its
Jurisdiction
;
for
if
their
Doctrine
be
true
,
that
by
being
Governour
,
he
is
so
absolute
,
as
to
be
subject
only
to
the
King
;
then
what
Sir
John
Witham
did
,
being
while
,
and
as
Deputy
Governour
,
which
is
the
true
Governour
to
all
purposes
in
absentia
of
the
other
,
is
not
examinable
by
a
Successor
.
But
admitting
for
the
present
,
that
by
the
Law
one
Magistrate
may
be
punishable
before
his
Successor
for
Miscarriages
which
were
committed
colore
Officii
;
yet
here
are
no
such
Miscarriages
sufficiently
alledged
to
be
charged
on
him
.
1.
There
's
no
pretence
of
an
Oath
,
nor
Circumstances
shewing
a
reasonable
Cause
of
Suspicion
,
one
of
which
ought
to
have
been
.
2.
In
pleading
no
Allegation
is
sufficient
,
if
it
be
so
general
,
as
the
Party
opponent
can't
in
reason
be
supposed
capable
of
making
an
Answer
to
it
;
and
that
is
the
true
Cause
why
our
Law
requires
Certainty
:
He
did
male
&
arbitrarie
execute
the
Office
to
the
Oppression
of
the
King's
Subjects
.
No
Man
living
can
defend
himself
on
so
general
a
Charge
as
this
is
:
for
if
Issue
had
been
taken
thereon
,
all
the
Acts
of
his
Government
had
been
examinable
,
which
the
Law
never
allows
:
Then
the
Particulars
are
as
general
;
1.
That
he
did
not
take
the
usual
Oath
;
and
it
doth
not
appear
what
Oath
,
or
if
any
was
requirable
of
a
Deputy
Governour
,
nor
who
was
to
administer
it
;
so
that
non
constat
,
whether
't
was
his
Fault
or
the
Governours
;
besides
,
that
's
no
cause
of
Imprisonment
,
for
any
thing
which
appears
in
the
Plea
.
2.
Assuming
illegally
the
Title
of
Lieutanant
Governour
;
that
is
so
trivial
,
as
it
needs
no
Answer
;
for
Deputy
Governour
and
Lieutenant
Governour
are
all
one
,
locum
tenens
is
a
Deputy
,
&
è
contra
.
3.
Altering
of
Orders
at
his
Chamber
ad
libitum
,
which
were
made
in
Court
;
not
said
that
there
was
any
such
Court
,
or
what
Orders
,
or
where
made
;
&
non
tantum
without
etiam
or
verum
etiam
,
is
not
a
sufficient
positive
Allegation
:
not
said
that
he
was
guilty
,
but
only
charged
;
and
not
said
how
charged
,
whether
with
or
without
Oath
,
in
writing
or
by
parol
:
nor
said
to
be
in
any
such
manner
as
that
the
Councel
ought
or
might
receive
it
:
tho'
Oath
be
not
necessary
to
be
mentioned
in
the
Commitment
,
yet
it
ought
to
be
alledged
in
pleading
,
because
't
is
necessary
to
warrant
the
Commitment
,
as
was
held
in
the
Lord
Yarmouth's
Case
in
B.R.
It
could
not
be
to
secure
his
answering
the
same
,
for
not
so
expressed
;
and
't
is
not
said
that
Sureties
were
demanded
or
denied
,
or
that
he
had
notice
of
the
Charge
;
and
surely
this
was
bailable
.
As
to
the
Query
,
If
conusable
here
;
't
was
argued
,
That
they
had
not
pleaded
to
the
Jur
'
,
nor
any
Matter
to
oust
the
Court
of
its
Jur
'
:
If
they
intended
by
this
Plea
to
have
done
that
,
they
should
have
given
Jur
'
to
some
other
Court
in
some
other
place
,
but
this
is
not
done
;
for
if
an
Injury
,
't
is
relievable
somewhere
in
the
King's
Dominions
;
and
whether
it
be
so
,
or
not
,
is
examinable
somewhere
:
Now
here
is
a
Wrong
complain'd
of
,
as
done
by
one
English-man
to
another
English-man
,
and
a
Jur
'
attacht
in
the
King's
Bench
,
both
of
Cause
and
Person
,
by
the
Bill
filed
,
and
his
Defence
to
it
:
besides
Jur
'
could
not
be
examined
in
the
Exchequer
Chamber
,
because
both
the
Statute
and
the
Writ
of
Error
expresly
provide
against
it
,
and.
this
Writ
of
Error
is
founded
upon
that
Affirmance
,
and
therefore
questionable
,
whether
that
could
be
insisted
on
here
?
But
supposing
it
might
,
't
was
argued
that
the
Action
lies
,
for
that
't
is
a
transitory
Action
,
and
follows
the
Person
wheresoever
he
comes
under
the
power
of
the
Common
Law
Process
:
and
that
a
Man
may
as
well
be
sued
in
England
for
a
Trespass
done
beyond
Sea
,
as
in
Barbadoes
,
or
the
like
place
;
as
for
a
Debt
arising
there
by
Specialty
,
or
other
Contract
,
that
no
Body
but
Prynne
ever
denied
it
,
and
he
did
so
only
in
case
of
Bonds
dated
there
:
That
many
Actions
have
been
maintained
and
tried
here
for
Facts
done
in
the
Indies
,
notwithstanding
special
Justifications
to
them
,
and
the
Trials
have
been
where
the
Actions
were
laid
:
There
was
quoted
Dowdale's
Case
,
6
Rep.
47
,
48.
and
7
Rep.
27.
and
if
otherwise
,
there
would
be
a
failure
of
Justice
in
the
King's
Dominions
,
32
Hen.
6.25
.
vide
Jackson
and
Crispe's
Case
,
Sid.
462.
2
Keeble
391
,
397.
'T
was
then
argued
,
That
whatsoever
question
might
be
made
about
the
Trial
of
the
Issue
,
if
one
had
been
joyned
;
yet
now
Demurrer
being
to
the
Plea
,
if
that
Plea
be
naught
,
then
the
Plaintiff
is
to
have
Judgment
upon
his
Declaration
,
and
that
is
all
right
.
It
was
further
said
,
That
the
Justification
of
such
a
tort
or
wrong
ought
to
be
according
to
the
Common
Law
of
England
,
for
that
Barbadoes
is
under
the
same
Law
as
England
;
and
if
't
were
not
,
upon
his
pleading
it
must
be
intended
to
be
so
;
and
tho'
they
should
be
intended
different
,
yet
the
Defendant
in
the
Action
was
obliged
to
the
same
Rules
of
Pleading
:
for
tho'
the
Matter
may
justifie
him
for
an
Act
done
there
,
which
would
not
justifie
him
for
the
same
Act
done
here
,
yet
he
must
shew
that
he
hath
pursued
the
Rules
of
Law
in
that
place
;
or
in
case
of
no
positive
Laws
,
the
Rules
of
Natural
Equity
:
for
either
the
Common
Law
,
or
new
instituted
Laws
,
or
natural
Equity
,
must
be
the
Rule
in
those
places
.
'T
was
agreed
,
That
according
to
Calvin's
Case
,
7
Rep.
17.
upon
the
Conquest
of
an
Infidel
Country
,
all
the
old
Laws
are
abrogated
ex
instanti
,
and
the
King
imposes
what
he
pleases
;
and
in
case
of
the
Conquest
of
a
Christian
Country
,
he
may
change
them
at
pleasure
,
and
appoint
such
as
he
thinks
fit
;
tho'
Coke
quotes
no
Authority
for
it
,
yet
't
was
agreed
,
that
this
might
be
consonant
to
reason
.
But
't
was
denied
that
Barbadoes
was
a
Conquest
,
't
was
a
Colony
or
Plantation
,
and
that
imports
rather
the
contrary
;
and
by
such
Names
these
Plantations
have
always
gone
in
Letters
Patents
,
Proclamations
,
and
Acts
of
Parliament
.
But
whatsoever
may
by
some
be
said
as
to
Statutes
in
particular
binding
there
,
the
Common
Law
must
and
doth
oblige
there
,
for
't
is
a
Plantation
or
new
Settlement
of
English-men
by
the
King's
Consent
in
an
uninhabited
Country
;
and
so
is
the
History
of
Barbadoes
written
by
Richard
Ligon
,
Printed
at
London
1673.
pag.
23.
says
he
,
'T
was
a
Country
not
inhabited
by
any
,
but
overgrown
with
Woods
.
And
pag.
100.
They
are
governed
by
the
Laws
of
England
.
And
Heylin
in
his
Geography
,
lib.
4.148
.
says
,
The
English
are
the
sole
Colony
there
;
they
are
called
the
King's
Plantations
,
and
not
his
Conquests
;
and
he
neither
could
,
nor
can
now
impose
any
Laws
upon
them
different
from
the
Laws
of
England
.
'T
was
argued
that
even
our
Statutes
do
bind
them
;
and
many
of
them
name
these
Plantations
as
English
;
they
have
some
Municipal
Rules
there
,
like
our
By-laws
in
the
Stanneries
or
Fenns
;
but
that
argues
nothing
as
to
the
general
;
which
shall
prevail
when
the
one
contradicts
the
other
,
may
be
a
Query
another
time
.
By
the
22
&
23
Car.
2.
cap.
26.
against
the
planting
of
Tobacco
here
,
and
for
the
Regulation
of
the
Plantation
Trade
,
the
Governours
of
those
Plantations
are
once
a
Year
to
return
to
the
Custom-house
in
London
an
Account
of
all
Ships
laden
,
and
of
all
the
Bonds
,
&c.
And
they
are
,
throughout
the
whole
Act
,
called
the
King's
English
Plantations
,
Governours
of
such
English
Plantations
,
to
some
of
the
English
Plantations
.
And
Paragr.
10.
't
is
said
,
Inasmuch
as
the
Plantations
are
inhabited
which
his
Subjects
of
England
;
and
so
't
is
in
15
Car.
2.
cap.
7.
sect.
5.
and
in
12
Car.
2.
cap.
34.
they
are
called
Colonies
and
Plantations
of
this
Kingdom
of
England
.
From
all
which
't
is
natural
to
infer
,
That
the
Rules
in
case
of
conquered
Places
cannot
prevail
here
;
Conquest
est
res
odiosa
,
and
never
to
be
presumed
;
besides
,
't
is
the
People
,
not
the
Soil
,
that
can
be
said
to
be
conquered
.
The
reason
of
a
Conquerour's
Power
to
prescribe
Laws
,
is
the
Conqueror's
Clemency
in
saving
the
Lives
of
the
conquered
,
whom
,
by
the
strict
right
of
War
,
he
might
have
destroyed
;
or
the
presumed
Chance
of
Subjection
,
which
the
conquered
Prince
and
People
threw
themselves
upon
,
when
they
first
engaged
in
the
War
.
But
this
is
not
pretended
to
here
,
tho'
all
the
Cases
about
this
Subject
were
put
below
stairs
:
Then
taking
it
as
the
truth
is
,
certain
Subjects
of
England
,
by
consent
of
their
Prince
,
go
and
possess
an
uninhabited
desert
Country
,
the
Common
Law
must
be
supposed
their
Rule
,
as
't
was
their
Birthright
,
and
as
't
is
the
best
,
and
so
to
be
presumed
their
Choice
;
and
not
only
that
,
but
even
as
obligatory
,
't
is
so
.
When
they
went
thither
,
they
no
more
abandoned
the
English
Laws
,
then
they
did
their
Natural
Allegiance
;
nay
,
they
subjected
themselves
no
more
to
other
Laws
,
than
they
did
to
another
Allegiance
,
which
they
did
not
.
This
is
a
Dominion
,
belonging
not
only
to
the
Crown
,
but
to
the
Realm
of
England
,
tho'
not
within
the
Territorial
Realm
.
Vaughan
330.
says
,
That
they
follow
England
,
and
are
a
part
of
it
.
Then
't
was
argued
further
,
If
't
were
possible
that
it
should
be
otherwise
,
when
did
the
Common
Law
cease
?
On
the
Sea
it
remained
in
all
Personal
Respects
;
If
Batteries
or
Wounds
on
Ship-board
,
Actions
lay
here
:
Then
the
same
held
when
they
landed
there
,
and
no
new
Laws
could
be
made
for
them
but
by
the
Prince
with
their
consent
.
Besides
,
Either
the
Right
of
these
Lands
was
gained
to
the
Crown
,
or
to
the
Planters
,
by
the
Occupancy
;
and
either
way
the
Common
Law
must
be
their
Rule
:
It
must
be
agreed
,
that
the
first
Entry
gained
the
right
,
and
so
is
Grotius
de
jure
Belli
&
Pacis
,
lib.
2.
cap.
8.
sect.
6.
and
these
Lands
were
never
the
Kings
,
tho'
they
afterwards
submitted
to
take
a
Grant
of
the
King
.
'T
is
true
,
in
case
of
War
,
what
is
gained
,
becomes
his
who
maintained
the
War
,
and
doth
not
of
right
belong
to
that
Person
who
first
possessed
it
,
Grot.
lib.
3.
cap.
6.
sect.
11.
But
in
case
it
be
not
the
effect
of
War
,
but
only
by
force
of
their
first
Entry
,
it
must
be
considered
what
Interest
they
did
acquire
,
and
certainly
't
was
the
largest
that
can
be
;
for
an
Occupant
doth
gain
an
Inheritance
by
the
Law
of
Nations
,
and
the
same
shall
descend
;
then
by
the
Rules
of
what
Law
shall
the
Descent
be
governed
?
it
must
be
by
the
Laws
of
the
Country
to
which
they
did
originally
,
and
still
do
belong
.
But
then
supposing
the
Lands
gained
to
the
Crown
,
and
the
Crown
to
distribute
these
Lands
,
the
Grant
of
them
is
to
hold
in
Soccage
,
and
that
is
a
common
Law
Tenure
;
why
are
not
their
Persons
in
like
manner
under
the
Common
Law
?
When
a
Governour
was
first
received
by
,
or
imposed
upon
them
,
't
was
never
intended
,
either
by
King
or
People
,
that
he
should
Rule
by
any
other
Law
than
that
of
England
.
And
if
it
had
been
known
to
be
otherwise
,
the
number
of
Subjects
there
would
have
been
very
small
.
In
these
Cases
their
Allegiance
continues
,
and
must
be
according
to
the
Laws
of
England
;
and
't
was
argued
,
that
ex
consequenti
the
protection
and
rule
of
them
ought
to
be
by
the
same
Laws
,
for
they
are
mutual
and
reciprocal
,
unum
trahit
alterum
;
and
that
Law
which
is
the
Rule
of
the
one
,
should
be
the
Rule
of
the
other
;
besides
,
't
is
the
Inhabitants
,
not
the
Country
,
that
are
capable
of
Laws
,
and
those
are
English
,
and
so
declared
and
allowed
to
be
;
and
consequently
there
's
no
reason
why
the
English
Laws
should
not
follow
the
Persons
of
English-men
,
especially
while
they
are
under
the
English
Government
,
and
since
the
Great
Seal
goes
thither
.
And
further
,
a
Writ
of
Error
lies
here
upon
any
of
their
ultimate
Judgments
;
so
says
Vaughan
402.
and
21
Hen.
7.3
.
that
it
doth
so
to
all
Subordinate
Dominions
;
and
tho'
the
distance
of
the
Place
prevents
the
common
use
of
such
Writ
,
yet
by
his
Opinion
it
clearly
lies
;
and
he
reckons
the
Plantations
part
of
those
Subordinate
Dominions
.
Now
a
Writ
of
Error
is
a
remedial
Writ
,
whereon
Right
is
to
be
done
,
and
that
must
be
according
to
the
Laws
of
England
;
for
the
King's
Bench
,
in
case
of
a
Reversal
upon
such
Writ
,
is
to
give
a
new
Judgment
,
as
by
Law
ought
to
have
been
first
given
.
Vaughan
290
,
291
,
says
,
It
lies
at
Common
Law
to
reverse
Judgments
in
any
inferiour
Dominions
;
for
if
it
did
not
,
inferiour
and
Provincial
Governments
might
make
what
Laws
they
please
;
for
Judgments
are
Laws
when
they
are
not
to
be
reversed
.
It
lay
to
Ireland
by
the
Common
Law
,
says
Coke
7
Rep.
18.
tho'
there
had
been
no
Reservation
of
it
in
King
John's
Charter
.
Then
't
was
inferred
,
that
the
lying
of
a
Writ
of
Error
proves
the
Laws
to
be
the
same
,
i.e.
in
general
the
Common
Law
to
govern
in
both
places
,
from
the
difference
assigned
between
Ireland
and
Scotland
;
it
lies
not
to
Scotland
,
because
a
distinct
Kingdom
,
and
governed
by
distinct
Laws
;
and
it
lies
to
Ireland
,
because
ruled
by
the
same
,
and
consequently
if
a
Writ
of
Error
lies
on
the
final
Judgment
there
;
it
's
a
good
Argument
that
the
same
Law
prevails
there
.
These
Plantations
are
parcel
of
the
Realm
,
as
Counties
Palatine
are
:
Their
Rights
and
Interests
are
every
day
determined
in
Chancery
here
,
only
that
for
necessity
and
encouragement
of
Trade
and
Commerce
,
they
make
Plantation-Lands
as
Assets
in
certain
Cases
to
pay
Debts
;
in
all
other
things
they
make
Rules
for
them
according
to
the
common
Course
of
English
Equity
:
The
distance
,
or
the
contiguity
of
the
thing
,
makes
no
alteration
in
the
Case
.
And
then
't
was
said
,
as
at
first
,
That
this
then
was
the
same
case
,
as
if
the
Imprisonment
had
been
in
England
or
on
Shipboard
,
as
to
the
Rules
of
Justification
;
that
if
there
were
another
Law
,
which
could
justifie
it
,
the
same
ought
to
have
been
certainly
pleaded
.
As
to
the
Instructions
,
those
do
not
appear
,
and
therefore
are
not
to
be
considered
in
the
Case
,
and
they
should
have
been
set
forth
,
and
no
extraordinary
Power
is
to
be
presumed
,
unless
shewn
,
for
every
Man
in
pleading
is
thought
to
make
the
best
of
his
own
Case
,
and
consequently
that
if
't
would
have
made
for
him
,
the
same
would
have
been
shewn
;
and
because
they
are
not
shewn
,
they
must
be
thought
directive
of
a
Government
according
to
the
Laws
of
England
,
since
't
is
to
a
Subject
of
this
Realm
to
govern
other
Subjects
of
this
Realm
,
living
upon
a
part
of
this
Realm
,
and
from
the
King
thereof
,
who
must
be
supposed
to
approve
those
Laws
which
make
him
King
,
and
by
which
he
reigns
.
Then
't
was
argued
,
Suppose
this
Governour
had
borrowed
Money
of
a
Man
in
the
Island
,
and
then
had
returned
to
England
,
and
an
Action
had
been
brought
for
it
,
and
he
had
pretended
to
ustifie
the
receipt
of
it
as
Governour
;
he
must
have
shewn
his
Power
,
the
Law
,
and
how
he
observed
that
Law
;
the
like
for
Goods
;
the
same
reason
for
Torts
and
Wrongs
done
vi
&
armis
.
Now
the
Court
below
could
consider
no
other
Power
or
Law
to
justifie
this
act
,
but
the
Common
Law
of
England
,
and
that
will
not
do
it
for
the
Reasons
given
;
and
if
it
be
justifiable
by
any
other
,
it
must
be
pleaded
;
and
what
he
hath
pleaded
is
not
pursued
,
&c.
As
to
the
Commitment
by
a
Council
of
State
,
what
it
means
is
hardly
known
in
the
Law
of
England
;
and
that
Authority
which
commits
by
our
Law
,
ought
to
be
certain
,
and
the
Cause
expressed
,
as
all
the
Arguments
upon
the
Writ
of
Habeas
Corpus
in
old
time
do
shew
;
but
here
's
no
Councel
:
and
't
is
not
said
so
much
,
as
that
he
was
debito
modo
onerat
'
:
And
as
to
the
Demurr'
,
that
confesses
no
more
then
what
is
well
pleaded
:
And
as
to
Consequences
,
there
's
more
danger
to
the
Liberty
of
the
Subject
,
by
allowing
such
a
Behaviour
,
then
can
be
to
the
Government
by
allowing
the
Action
to
lye
:
And
therefore
't
was
prayed
that
the
Judgment
might
be
affirmed
.
It
was
replyed
on
behalf
of
the
Plaintiff
in
the
Writ
of
Error
,
That
notwithstanding
all
that
had
been
said
,
the
Laws
there
were
different
,
tho'
the
Foundation
of
them
was
the
Common
Law
that
they
would
not
enter
into
that
Question
,
What
sort
of
Title
at
first
gave
Right
to
these
Lands
?
but
that
this
was
a
Commitment
by
a
Councel
of
State
:
And
,
as
to
the
Objection
of
too
general
Pleadings
in
male
&
arbitrarie
exercendo
,
&c.
tho'
the
inducement
of
the
Plea
was
so
.
There
were
other
Matters
more
particularly
pleaded
;
the
altering
the
Decrees
in
his
Chamber
,
which
was
sufficient
:
And
as
to
the
Objection
,
That
't
is
not
alledged
in
the
Pleadings
,
that
the
Charge
in
Councel
against
Wytham
was
upon
Oath
;
they
answered
,
That
't
is
not
effential
,
tho'
prudent
,
to
have
the
Charge
upon
Oath
before
Commitment
;
Matters
may
be
otherwise
apparent
.
And
as
to
the
Objection
,
That
the
Warrant
of
the
Councel
for
the
Commitment
was
not
shewn
;
they
said
that
it
lay
not
in
their
power
,
because
't
was
delivered
to
the
Provost
Marshal
,
as
his
Authority
,
for
the
Capture
and
Detention
of
him
,
and
therefore
did
belong
to
him
to
keep
:
And
that
the
Councel
,
tho'
they
were
not
a
Court
,
yet
they
had
Jurisdiction
to
hear
the
Complaint
,
and
send
him
to
another
Court
that
could
try
the
Crime
;
and
tho'
it
did
not
appear
that
the
King
gave
any
Authority
to
the
Governour
and
Councel
to
commit
,
yet
't
is
incident
to
their
Authority
,
as
being
a
Councel
of
State
;
the
Councel
here
in
England
commit
no
otherwise
:
and
where
the
Commitment
is
not
authorized
by
Law
,
the
King's
Patent
gives
no
power
for
it
:
But
the
Government
must
be
very
weak
,
where
the
Councel
of
State
cannot
commit
a
Delinquent
,
so
as
to
be
forth-coming
to
another
Court
that
can
punish
his
Delinquency
:
And
therefore
prayed
that
the
Judgment
should
be
reversed
,
and
the
same
was
accordingly
reversed
.
Philips
versus
Bury
.
WRit
of
Error
to
reverse
a
Judgment
given
for
the
Defendant
in
the
Court
of
King's
Bench
,
where
the
Case
upon
the
Record
was
thus
;
Ejectione
firme
on
the
Demise
of
Painter
as
Rector
,
and
the
Scholars
of
Exeter
Colledge
in
Oxon
,
for
the
Rector's
House
.
The
Defendant
pleads
specially
,
That
the
House
in
question
is
the
Freehold
of
the
Rector
and
Scholars
of
the
Colledge
;
but
he
says
,
That
he
,
the
said
Dr.
Bury
,
was
then
Rector
of
that
Colledge
,
and
that
in
right
of
the
Rector
and
Scholars
he
did
enter
into
the
Messuage
in
question
,
and
did
Eject
the
Plaintiff
,
and
so
holds
him
out
;
absque
hoc
,
That
Painter
the
Lessor
of
the
Plaintiff
,
was
at
the
time
of
making
the
Lease
,
in
the
Declaration
,
Rector
of
that
Colledge
,
&
hoc
paratus
est
verificare
,
&c.
The
Plaintiff
replys
,
That
the
Messuage
belongs
to
the
Rector
an
Scholars
,
but
that
Painter
the
Lessor
was
Rector
at
the
time
of
the
Lease
:
&
hoc
petit
quod
inquiratur
per
Patriam
,
&c.
and
thereon
Issue
is
joyned
,
and
a
Special
Verdict
.
The
Jury
find
that
Exeter
Colledge
is
and
was
one
Body
Politick
and
Corporate
,
by
the
Name
of
Rector
and
Scholars
Collegij
Exon'
infra
Vniversitat'
Oxon'
,
that
by
the
Foundation
of
the
Colledge
there
were
Laws
and
Statutes
by
which
they
were
to
be
governed
;
and
that
the
Bishop
of
Exeter
,
for
the
time
being
,
and
no
other
,
at
the
time
of
founding
the
Colledge
,
was
constituted
by
virtue
of
the
Statute
concerning
that
Matter
hereafter
mentioned
,
ordinary
Visitor
of
the
same
Colledge
,
secundum
tenorem
&
effectum
statut'
eam
rem
concernent'
,
That
the
Bishop
of
Exeter
,
who
now
is
,
is
Visitor
according
to
that
Statute
.
Then
they
find
the
Statute
for
the
Election
of
a
Rector
prout
,
&c.
Then
they
find
the
Oath
required
of
the
Rector
,
That
so
long
as
he
should
remain
in
that
Office
,
he
should
be
true
and
faithful
to
the
Colledge
,
and
its
Lands
,
Tenements
,
Possessions
Ecclesiastical
and
Secular
,
Rights
,
Liberties
and
Priviledges
,
and
all
its
Goods
,
moveable
and
immoveable
,
would
keep
and
defend
,
and
all
the
Statutes
,
Ordinances
,
and
Customs
of
the
Colledge
he
would
observe
,
and
endeavour
that
they
should
be
observed
by
all
Scholars
,
Graduates
and
Under-graduates
,
&c.
That
he
would
occasion
no
Trouble
or
Grievance
to
any
of
the
Scholars
contra
justitiam
charitatem
&
fraternitatem
,
But
according
to
the
best
of
his
Judgment
and
Conscience
,
he
would
cause
due
Discipline
to
be
used
according
to
the
form
of
the
Statutes
of
the
Colledge
:
That
he
would
maintain
and
defend
all
Suits
for
the
Colledge
,
but
never
begin
one
wherein
any
Disadvantage
or
great
Prejudice
may
happen
to
the
Colledge
,
without
the
deliberate
consent
of
the
major
part
of
the
Fellows
.
And
if
any
variance
happen
between
him
and
the
Scholars
,
and
the
same
be
not
ended
within
ten
or
twenty
Days
,
by
the
Sub-rector
,
Dean
,
and
three
Senior
Scholars
of
the
Colledge
,
that
then
he
would
stand
to
the
direction
of
the
Chancellor
,
or
in
his
absence
,
of
the
Vice-Chancellor
or
his
Commissary
,
and
his
Award
would
faithfully
observe
,
&
si
contigerit
me
in
posterum
propter
mea
demerita
,
seu
causas
in
statut'
content'
juxta
formam
statorum
ab
officio
me●
expelli
seu
alias
amoveri
,
omnibus
&
singulis
juris
&
fact'
remediis
per
quae
vel
quae
petere
me
possim
reconciliari
vel
in
integrum
restitui
circa
praemissa
quantumcunque
aliis
probitat'
&
vitae
merita
mihi
Suffragentur
in
vim
pacti
renuncio
in
his
scriptis
,
and
that
he
would
observe
the
Statutes
,
according
to
the
plain
Grammatical
Sence
,
&c.
Then
they
find
another
Statute
,
Si
quis
Scholarium
vel
Electorum
,
be
convict
of
Adultery
,
Incontinency
,
heresis
pertinacis
,
wilful
Homicide
,
manifest
Perjury
,
frequent
Drunkenness
,
alteriusque
publicae
turpitudinis
,
before
the
Rector
,
Sub-rector
,
Dean
,
and
five
other
Senior
Scholars
,
or
the
major
part
of
them
,
with
the
consent
of
the
said
Rector
,
he
shall
be
ipso
facto
expelled
,
nulla
alia
monitione
praemissa
.
And
in
the
same
Statute
(
which
is
intituled
de
causis
propter
quas
Scholares
privari
debeant
,
&
de
dissentionibus
sedandis
)
't
is
farther
established
,
quod
si
aliqua
discordia
ira
,
rixae
ant
dissentionis
materia
(
quod
absit
)
in
dicto
Collegio
suborta
sit
,
qualitercunque
inter
quoscunque
Scholares
,
aut
alios
in
dicto
Collegio
morantes
,
nisi
sic
dissentiones
intra
unum
diem
intra
se
concordent
tunc
celerius
cautius
&
melius
quo
fieri
potuit
per
praedict'
Rectorem
,
vel
in
ejus
absentia
Sub-rectorem
,
&
tres
Scholares
,
ex
praesentibus
in
Collegio
omnino
Seniores
intra
bidnum
sedetur
&
pacificetur
hujusmodi
dissentio
;
si
vero
ipsi
ad
eand'
sedand'
non
sufficiant
,
tum
Rector
(
assumpto
sibi
Sub-rectore
,
Decano
,
&
aliis
quinque
Scholaribus
omnino
Senioribus
per
quos
veris
'
sedari
poterit
)
summarie
&
de
plano
eam
examinat
sicque
finis
discordie
,
ire
,
dissentioni
,
&
jurgij
hujusmodi
,
favore
,
partialitate
,
ira
,
odio
,
&
invidia
quibuscunque
cessantibus
intra
tres
dies
lapsum
illius
bidui
immediate
sequentes
imponatur
:
&
quicquid
Rector
cum
praed'
vel
major'
parte
corundem
duxerit
ordinandum
&
agendum
per
partes
discordantes
firmiter
in
virtute
eorum
juramenti
observetur
&
executioni
absque
contradictione
cujuscunque
demandetur
:
nec
liceat
alicui
de
dicto
Collegio
cujuscunque
gradus
aut
status
extiterit
occasione
rixae
jurgij
aut
dissentionis
intra
dictum
Collegium
aut
extra
intra
eosdem
orte
vel
mote
prosecutionem
facere
,
aut
litem
aliquam
movere
vel
aliquem
impetere
,
aut
adjudicium
trabere
,
coram
aliquo
judice
extrinseco
Ecclesiastico
vel
Secular'
sed
volumus
omnino
quod
hujusmodi
jurgia
ire
rixe
discordia
&
dissentiones
(
quae
per
Dei
gratiam
raro
aut
nunquam
contingent
)
per
personas
praedict'
aliqua
ordinatione
bona
seu
concordia
terminentur
&
finientur
.
The
Jury
finds
,
That
from
the
Foundation
of
the
Colledge
there
was
,
and
yet
is
,
quidam
ordo
Scholiarium
,
vocat'
veri
&
perpetui
Scholares
,
and
that
by
the
Statutes
,
every
Scholar
who
hath
passed
his
Probation
Year
,
and
is
approved
to
be
a
true
and
perpetual
Scholar
,
shall
take
an
Oath
before
the
Rector
,
or
in
his
absence
before
the
Sub-rector
,
&c.
to
observe
the
Statutes
of
the
Colledge
,
and
to
endeavour
that
others
observe
them
too
,
or
otherwise
to
undergo
the
Penalties
on
them
inflicted
,
without
contradiction
,
according
to
the
true
form
and
effect
of
these
Statutes
:
To
obey
all
Injunctions
,
Expositions
,
and
Constructions
by
the
Reverend
Bishops
,
Successors
of
the
first
and
original
Founder
,
super
dubiis
Statut'
emergentibus
ad
eosdem
Episcopos
ex
consensu
Rectoris
&
majoris
partis
Scholarium
delat'
faciendis
:
to
be
true
to
the
Colledge
,
neither
to
do
,
nor
wittingly
to
suffer
to
be
done
,
any
Prejudice
,
Damage
,
or
Scandal
to
the
same
,
to
obey
,
assist
,
and
reverence
the
Rector
,
Sub-rector
,
&c.
and
other
Superiours
,
Scholars
in
licitis
ac
honestis
&
maxime
in
eorum
conventionibus
&
in
negotiis
Collegij
quatenus
Statuta
jubent
aut
requirant
effectually
to
obey
all
Directions
and
Orders
of
the
Rector
,
Sub-rector
,
&c.
to
maintain
and
defend
the
Rights
and
Liberties
,
the
honesty
and
good
fame
of
the
College
,
and
its
Scholars
,
&c.
Item
si
contingat
me
posthac
per
Rectorem
aut
in
hujusmodi
rebus
habentes
interesse
corrigi
,
&
puniri
,
aut
a
dicti
Collegii
sustentatione
ejici
&
expelli
,
excludi
,
privari
,
vel
amoveri
praeter
mea
forsan
demerita
,
ipsum
Rectorem
seu
alias
personas
seu
eorum
aliquem
,
occasione
expulsionis
vel
correctionis
hujusmodi
nunquam
prosequar'
,
molestabo
,
vel
inquietabo
,
per
me
alium
vel
alios
,
sen
ab
aliis
prosequi
vel
molestari
seu
inquietari
ea
de
causa
quautum
in
me
fuerit
permittam
:
sed
sponte
simpliciter
vel
absolute
,
omni
actioni
,
contra
Rectorem
aut
alios
dicti
Collegij
Scholares
quomodo
libet
appellationi
&
querelae
in
ea
parte
faciendis
,
ac
quorumcunque
literar'
impetrationi
precibus
principum
,
praelatorum
,
procerum
,
magnaium
,
&
aliorum
quorumcunque
quibus
post
ad
jus
titulum
&
possessionem
vindicandum
reconciliari
,
ac
quibuscunque
juris
&
facti
remediis
per
que
me
petere
possem
integrum
restitui
,
quantumcunque
alias
mihi
probitatis
&
vitae
merita
suffragantur
,
in
vim
pacti
renuntio
:
To
be
just
and
impartial
in
Election
of
Scholars
,
not
to
reveal
the
Secrets
,
&c.
not
to
desert
the
Colledge
to
be
of
another
,
without
license
,
&c.
The
Jury
further
finds
,
That
according
to
the
Statutes
there
are
probationary
Scholars
,
who
are
to
be
such
for
a
Year
,
before
they
be
admitted
to
be
true
and
perpetual
Scholars
,
and
that
every
one
chosen
in
for
a
Probationer
,
shall
swear
that
he
cannot
certainly
expend
above
four
Marks
per
Annum
;
to
be
true
to
the
Colledge
,
and
not
to
reveal
Secrets
to
its
scandal
,
prejudice
,
or
danger
;
not
to
make
or
procure
any
Conventicles
,
Conspiracies
,
or
Contracts
against
the
Ordinances
and
Statutes
of
the
Colledge
,
or
the
honour
of
the
Colledge
or
the
Rector
,
&c.
to
promote
Peace
there
,
&
si
conting
at
me
(
quod
absit
)
juxta
formam
&
exigentiam
Statutor'
a
praedict'
Collegio
expelli
seu
amoveri
per
Rectorem
&
alias
person'
in
hujusmodi
expulsione
interesse
habentes
,
&c.
in
like
manner
as
the
perpetual
Scholars
swear
.
Then
the
Jury
find
the
Statute
de
Visitatione
,
reciting
how
prone
Mankind
is
to
Evil
,
and
Time
changeth
the
best
things
,
and
that
't
is
impossible
to
make
Laws
,
but
by
Mis-construction
,
Fraud
,
or
other
Practise
may
be
dissolved
,
that
he
confided
in
the
Bishops
of
Exeter
his
Successors
(
quos
dicti
Collegij
Patronos
&
visitatores
relinquimus
)
that
those
who
are
brought
thither
through
fervent
Charity
,
being
inflamed
with
Christian
Faith
,
might
watch
to
the
preserving
that
Nursery
,
that
the
Statutes
and
Ordinances
of
the
Colledge
might
be
studiously
observed
,
Vertue
and
Learning
be
nourished
,
their
Possessions
and
Goods
,
spiritual
and
temporal
,
may
flourish
,
their
Rights
,
Liberties
,
and
Priviledges
may
be
defended
:
Ea
de
causa
liceat
Domino
Episcopo
Exon'
qui
pro
tempore
fuerit
,
&
nulli
alij
nec
aliis
quoties
per
Rectorem
dicti
Collegij
&
in
ejus
absentia
Sub-rectorem
&
quatuor
alios
ad
minus
ex
septem
maxime
senioribus
Scholaribus
fuerit
requisitus
,
necnon
absque
requisitione
ulla
de
quinquennio
in
quinquennium
semel
ad
dictum
Collegium
per
se
vel
suum
Commissar'
quem
duxerit
deputandum
,
libere
accedere
;
cui
quidem
Reverendo
—
He
gives
full
power
upon
all
Articles
in
the
Statutes
contained
,
and
other
Articles
concerning
the
Estates
,
Honours
,
or
Profits
of
the
Colledge
,
to
interrogate
and
examine
the
Rector
,
Scholars
,
and
elect
,
and
to
compel
them
by
Oath
,
and
Censures
if
need
be
,
to
say
the
Truth
,
and
all
Crimes
and
Offences
of
the
said
Colledge
whatsoever
,
Commissa
&
in
ea
visitatione
Comperta
,
according
to
the
quality
of
the
Offence
to
punish
and
reform
,
and
to
do
all
things
requisite
quoad
eorum
correctionem
&
reformationem
etiamsi
ad
deprivationem
seu
amotionem
Rectoris
Subrectoris
aut
alterius
cujusquam
ab
administratione
sua
vel
officio
sive
ad
amotionem
alicujus
Scholaris
vel
Electi
ab
eodem
Collegio
,
Statut'
&
Ordinationibus
id
exigentibus
,
procedere
contingat
:
Stat'
insuper
,
that
none
in
dictis
visitationibus
in
dicto
Collegio
faciend'
contra
Rectorem
Sub-rectorem
aut
aliquem
alium
ipsius
Collegij
quemcunque
dicat
deponat
seu
denunciat
nisi
quod
verum
crediderit
seu
de
quo
publica
voxvel
fama
labor
averit
contra
eundem
in
virtute
juramenti
ab
eo
prius
Collegij
praestiti
:
Ordinantes
praeterea
ut
Dominus
Episcopus
Exon
cum
in
persona
propria
visitare
aut
praemiss'
facere
dignatur
,
Rector
&
duo
Scholares
ex
praesentibus
maxime
Senioribus
unam
in
Collegio
refectionem
quadraginta
solidor'
expensas
non
excedentem
eidem
Episcopo
humiliter
&
reverenter
offerent
.
Commissario
autem
cum
praemissa
fecerit
duas
refectiones
in
Collegio
vel
viginti
solidos
per
manus
Rectoris
de
bonis
Collegij
persolvi
concedimus
pro
omnibus
laboribus
&
expensis
in
hanc
Causam
tam
in
itinere
quam
in
Vniversitate
tempore
hujus
visitationis
.
Itaque
Dominus
Episcopus
quadragint'
solid'
Commissarius
vero
viginti
solid'
in
uno
&
eodem
anno
pro
actu
visitationis
ad
sumptus
Collegij
non
excedat
;
nec
inceptam
aliquam
visitationem
ultra
duos
dies
proxime
sequentes
,
aut
ex
causis
urgentissimis
&
rarissimis
ultra
tres
dies
prorogari
aut
continuari
ullo
pacto
volumus
sed
lapso
&
acto
illo
biduo
&
quando
de
causis
praedict'
ulterius
prorogatur
triduo
transacto
ea
ipsa
visitatio
illa
pro
terminata
&
dissoluta
habeatur
.
Et
si
quae
in
ea
comperirent
corrigenda
&
reformanda
que
brevitate
temporis
corrigere
&
reformari
non
potuerint
,
ea
rectori
in
scriptis
tradat
,
qui
ea
omnia
secundum
formam
&
exigentiam
statutorum
sine
dilatione
quantum
in
eo
erit
corrigere
&
reformare
tenebitur
sub
poena
contemptus
:
Then
in
the
Name
of
Jesus
,
and
as
they
will
answer
it
at
the
last
Tribunal
,
that
neither
for
fear
,
hatred
,
favour
,
ill-will
,
vel
prece
,
vel
pretio
,
they
do
or
neglect
to
do
any
of
the
Premises
,
&c.
Statuimus
preterea
,
ut
Rector
subrector
scholares
aut
alius
quispiam
cujuscunque
sortis
dicti
collegii
super
Excessibus
vel
delictis
in
Visitationibus
&
inquisitionibus
per
dictum
Episcop
'
Exon
vel
ejus
commissarium
ut
permittitur
faciendis
accusatus
vel
detectus
copiae
compertorum
vel
detectorum
hujusmodi
tradidi
aut
ostendi
aut
nomina
detegentium
non
ostendantur
:
sed
sup'
iisdem
compertis
aut
detectis
statim
coram
Episcop'
vel
ejus
commissario
personaliter
respondeat
ac
correctionem
debitam
subeat
pro
eisdem
secund'
tenor'
statut'
cessantibus
quibuscunque
provocationibus
appellationibus
querelis
&
aliis
juris
&
facti
remediis
per
quae
ipsius
correctio
&
punitio
deferri
seu
impediri
valeat
.
Si
tamen
ad
privationem
aut
inhabilitatem
rectoris
aut
expulsionem
scolaris
alicujus
per
Episcop'
aut
ejus
commissarium
agatur
:
tum
ostendantur
ei
delicta
,
quibus
si
non
potuerit
rationabiliter
&
honeste
respondere
suamque
innocentiam
probabiliter
ostendere
,
&
sese
super
objectis
juste
purgare
,
amoveatur
sine
appellatione
aut
ulteriori
remedio
;
Dummodo
ad
ejus
expulsionem
concurrat
consensus
Rectoris
&
trium
ex
septem
maxime
senioribus
Scholaribus
tunc
in
universitate
praesentibus
;
sine
quorum
consensu
irrita
sit
hujusmodi
expulsio
&
nulla
ipso
facto
:
&
in
sup'
si
contra
Rectorem
ad
amotionem
ab
officio
per
hujusmodi
Domini
Episcop'
commissarium
,
etiam
consentientibus
quatuor
ex
septem
maxime
senioribus
supradictis
procedat'
non
negamus
ei
omnes
exceptiones
defentiones
justas
&
honestas
,
apud
ipsum
Dom'
Episcopum
Exon
dummodo
ulterius
non
appellat
,
non
obstante
hac
ordinatione
praedicta
aut
aliis
quibuscunque
.
The
Jury
further
find
,
that
in
another
Statute
,
propter
quas
causas
Rector
officio
privari
debet
.
It
is
thus
,
Cum
bono
providoque
Rectore
nihil
sit
utilius
;
&
imprudenti
,
inepto
,
indigno
,
penitus
inhabili
,
criminoso
nihil
sit
detestabilius
:
statuimus
ut
Rector
quicunque
propter
terrarum
,
tenementorum
,
reddituum
,
possessionum
spiritualium
aut
temporalium
sua
culpa
diminutionem
seu
alienationem
,
vel
propter
detractionem
ablationem
alienationem
illicitam
bonorum
&
rerum
ipsius
Cellegii
,
infamiam
,
adulterium
incontinentiamque
negligentiam
intolerabilem
,
heresin
pertinacem
homicidium
voluntarium
,
perjuriam
manifestum
,
crebram
ebrietatem
,
&
propter
longiorem
absentiam
a
Collegio
quam
Statuta
permittunt
,
vel
procurationem
sui
sibi
officii
per
largitiones
inhonestas
datas
dandas
vel
promissaes
,
vel
quacunque
via
aut
modo
illicito
,
&
propter
usuram
,
simoniam
,
aliamve
causam
ipsum
Rectorem
reddentem
criminaliter
irregularem
vel
aliter
penitus
inhabilem
;
necnon
propter
infirmitatem
infectivam
&
contagiosa
'
perpetuam
,
cujus
occasione
non
poterit
absque
scandalo
officium
hujusmodi
exercere
,
ab
eo
penitus
amoveatur
,
Ad
cnj●
amotionens
hoc
modo
procedatur
,
viz.
ut
statim
vel
saltem
inter
quindecim
dies
postquam
aliquid
premissor'
commiserit
vel
in
eorum
aliquod
inciderit
,
primo
per
sub-rectorem
,
assistentibus
ei
quinque
scholaribus
maxime
senioribus
dicti
Collegii
moveatur
Rector
eique
bonis
rationibus
suadeant
ad
voluntarie
cedendum
officio
:
quod
si
sponte
inter
triduum
cedere
noluerit
,
tunc
intra
octo
dies
post
hujusmodi
monitionem
subrectoris
assensu
&
testimonio
omnium
perpetuorum
soholarium
dicti
Collegii
,
vel
saltem
majoris
partis
eorundem
,
denunciabit'
Domino
Episcopo
Exon
qui
pro
tempore
fuerit
,
per
duo's
ipsius
Collegii
scholares
omnino
seniores
,
cum
litteris
aliquo
sigillo
authentico
,
ac
signo
&
subscriptione
alicujus
Notarii
publici
signatis
,
vel
saltem
loco
sigilli
authentici
,
subscriptione
subrectoris
,
ut
prefertur
,
&
majoris
partis
scholarium
ac
notarii
publici
signo
communitis
causas
defectus
crimina
excessus
vel
enormia
Rectoriis
continentibus
,
proviso
quod
omnes
hujusmodi
attestantes
,
ac
testimonium
perhibentes
,
prius
tactis
sacrosanctis
Dei
Evangeliis
coram
subrectore
,
ipso
primum
id
coram
illis
presentante
,
ac
deinde
a
singulis
corum
id
exigente
,
jurabunt
,
quod
non
per
invidiam
,
malitiam
odium
vel
timorem
,
nor
for
love
nor
honour
of
any
other
to
be
promoted
to
the
place
,
nor
for
Emulation
nor
Envy
,
or
by
Conspiracy
or
the
procuration
of
any
other
they
did
testifie
it
,
but
merely
from
a
good
zeal
and
love
for
the
College
,
and
the
good
Estate
thereof
:
that
the
Bishop
or
his
Vicar
,
de
causis
criminibus
excessibus
&
defectibus
contra
rectorem
propositis
sumam'
&
de
plano
&
extra
strepitum
judicialem
cognoscat
,
and
if
by
sufficient
proof
he
find
the
Accusation
true
,
he
shall
immediately
remove
him
from
his
Office
and
Administration
,
and
enjoyn
the
Scholars
to
proceed
to
the
Election
of
a
new
Rector
,
according
to
the
form
of
the
Statute
aforesaid
:
Cessantibus
appellationibus
—
querelis
aut
cujuscunque
alterius
Juris
&
facti
remediis
quibus
hujusmodi
amotio
valeat
impediri
aut
disserri
,
quae
omnia
irrita
esse
volumus
Statuimus
&
decrevimus
ipso
facto
.
The
Jury
find
further
,
that
Queen
Elizabeth
,
I.
Martii
anno
regni
ejus
octavo
,
makes
this
House
which
was
before
a
Hall
,
to
be
a
College
,
and
confirms
the
Statutes
,
and
constitutes
them
a
Body
Corporate
,
and
that
one
Sir
William
Petre
,
being
willing
to
supply
the
wants
of
the
College
,
makes
addition
to
the
Revenue
,
and
to
some
defective
Statutes
,
&c.
Then
they
find
that
before
the
time
of
the
demise
in
the
Declaration
,
viz.
16.
Octob'
Anno
W.
&
Mar
'
1.
one
James
Colmer
,
A.M.
was
Convicted
before
the
Rector
,
Sub-Rector
,
and
five
Seniors
,
of
Incontinency
,
with
one
Ann
Sparrow
,
and
therefore
was
Expelled
;
that
he
Appealed
to
the
Bishop
of
Exeter
;
that
21st
of
February
,
1689.
he
made
his
Commission
to
Dr.
Masters
,
which
Commission
,
is
found
in
haec
verba
,
reciting
that
't
is
complained
by
C.
that
he
was
unjustly
Expelled
,
and
therefore
appoints
Dr.
Masters
to
hear
and
determine
the
same
:
that
the
Commissary
proceeds
to
the
execution
of
that
Commission
and
22th
Martii
,
he
comes
to
the
College
and
sits
in
the
Chappel
with
a
notary
publick
,
and
Colmer
appears
,
and
the
Rector
and
the
rest
did
not
;
then
he
Adjourns
to
the
Hall
,
and
Summons
all
the
Parties
to
attend
there
,
and
there
Dr.
Bury
made
and
exhibited
a
Protestation
in
Writing
under
their
Hands
,
setting
forth
the
Oath
of
a
Fellow
not
to
Appeal
and
Protest
against
his
Authority
,
to
examine
it
;
thereupon
,
the
Doctor
proceeds
and
examines
the
Fact
ex
parte
,
and
Reverses
the
Sentence
,
and
Restores
Colmer
,
viz.
25
Martij
,
because
the
Process
was
not
transmitted
.
Then
they
find
that
the
16th
of
May
,
the
Bishop
issued
his
Citation
to
the
Rector
,
or
Sub-Rector
,
for
a
General
Visitation
,
to
be
held
the
16th
of
June
,
in
the
Chappel
of
the
Colledge
;
and
accordingly
the
16th
of
June
,
the
Bishop
comes
to
the
Colledge
,
and
to
the
Door
of
the
Chappel
,
which
was
shut
up
;
and
that
the
Porter
was
subject
to
the
Government
of
the
Rector
,
and
bound
to
obey
his
Commands
,
in
shutting
or
opening
the
Doors
;
and
certain
of
the
Scholars
did
then
offer
in
area
Collegij
,
a
certain
Writing
under
their
Hands
,
protesting
against
the
Visitation
,
as
within
time
,
by
reason
of
Dr.
Masters's
Visitation
:
This
is
refused
by
the
Bishop
:
The
Bishop
then
Administred
an
Oath
to
Webber
,
of
the
Service
of
Citation
;
and
then
he
called
over
the
Names
of
the
Rector
and
Scholars
who
appeared
not
;
and
not
being
admitted
into
the
Chappel
,
he
departed
.
Then
upon
the
21st
of
July
,
he
Summons
a
Visitation
upon
the
24th
of
July
,
and
the
23th
of
July
,
the
Rector
,
&c.
protested
against
the
intended
Visitation
,
insisting
on
their
Statutes
,
which
by
Oath
they
are
bound
to
observe
,
and
this
under
their
Common
Seal
.
Then
the
Bishop
upon
the
24th
of
July
,
receives
the
Protestation
,
quatenus
de
Jure
;
then
they
departed
,
refusing
to
agree
to
his
Visitation
;
Ten
of
the
Fellows
appeared
,
and
submitted
;
the
rest
were
pronounced
Contumacious
for
not
appearing
:
Then
he
Administred
several
Interrogatories
,
to
discover
Matter
of
Accusation
against
the
Rector
and
Fellows
.
In
the
Afternoon
the
Absentees
were
called
again
,
and
declared
in
Contempt
,
and
the
Fellows
Suspended
,
and
Adjourned
to
the
25
;
and
then
Dr.
Herne
was
deprived
for
having
a
Living
inconsistent
with
his
Fellowship
;
Dr.
Bury
is
pronounced
Contumacious
,
sed
de
poena
in
eum
infligend'
duxit
deliberand'
:
Then
the
24th
he
calls
for
the
Act
,
actum
quendam
coram
eo
decimo
sexto
die
Julij
ult'
Elaps'
die
alias
statut'
pro
visitatione
hujus
Collegij
expedit'
eundemque
actum
pro
parte
process'
hujus
negotij
visitationis
haberi
decrevit
.
Then
he
Adjourns
to
the
26th
,
and
then
he
deprives
Dr.
Bury
for
Contumacy
,
with
the
Consent
of
Four
of
the
Seven
Senior
Fellows
not
Suspended
;
Twelve
having
been
Suspended
.
And
they
find
further
,
That
the
Four
Fellows
which
Subscribed
the
Sentence
of
Deprivation
,
were
not
of
the
Senior
Fellows
,
unless
by
the
Deprivation
of
Dr.
Herne
,
and
the
Suspension
of
George
Vernon
,
Thomas
Lethbridge
,
Benjamin
Archer
,
Samuel
Adams
,
and
Philip
Thorne
;
all
which
six
,
half
the
number
of
the
Suspended
,
were
Seniors
to
the
Consenting
Scholars
.
Then
they
find
that
after
this
Sentence
,
Painter
was
elected
into
the
Rectorship
,
Concurrentibus
omnibus
requisitis
;
si
praedict'
Officium
Rectoris
eo
tempore
fuit
vacans
;
and
that
Dr.
Bury
,
1
June
,
Anno
Jac.
2.
&
semper
postea
usque
sententiam
praedict'
:
si
sententia
in
contrar'
non
valeat
semper
postea
fuit
&
adhuc
est
verus
&
legitimus
Rector
Collegij
praedict'
.
That
William
Painter
as
Rector
,
and
the
Scholars
of
the
said
Colledge
did
make
the
Demise
in
the
Declaration
,
and
thereon
the
Plaintiff
entred
,
and
Dr.
Bury
enters
on
him
,
and
holds
,
and
yet
doth
hold
him
out
,
modo
&
forma
prout
in
nar'
,
&c.
sed
utrum
super
totam
materiam
praedict'
locus
Rectoris
per
privation'
praedictam
praed'
Arthuri
legitime
vacavit
nec
ne
the
Jury
are
ignorant
,
&
si
per
inde
locus
praedict'
legitime
vacavit
tunc
pro
quaerent'
&
si
non
,
tunc
pro
Defendent'
.
It
was
argued
on
the
behalf
of
the
Plaintiff
in
the
Writ
of
Error
,
That
this
Judgment
was
illegal
;
and
the
general
Question
was
,
Whether
this
Sentence
of
Deprivation
,
thus
given
by
the
Visitor
against
Dr.
Bury
,
did
make
the
Rectorship
void
as
to
him
,
and
so
consequently
gave
a
Title
to
the
Lessor
of
the
Plaintiff
.
But
upon
this
Record
the
Questions
were
two
:
1.
Whether
or
no
by
the
Constitution
of
this
Colledge
,
the
Bishop
had
a
Power
in
this
Case
to
give
a
Sentence
.
2.
Supposing
that
he
had
such
a
Power
,
Whether
the
Justice
of
that
Sentence
were
examinable
in
Westminster-hall
upon
that
Action
?
And
1.
't
was
argued
,
That
the
Bishop
had
such
a
Power
to
give
a
Sentence
;
and
it
was
agreed
that
he
could
make
his
Visitation
but
once
in
five
Years
,
unless
he
be
called
by
the
Request
of
the
Colledge
;
and
if
he
comes
uncalled
within
the
five
Years
,
his
Visitation
would
be
void
:
But
yet
the
Visitation
of
the
24th
of
July
was
a
good
Visitation
,
and
consequently
the
Sentence
upon
it
is
good
;
that
there
was
no
colour
to
make
Dr.
Masters's
coming
in
March
to
examine
Colmer's
Appeal
upon
the
Visitor's
Commission
,
to
be
a
Visitation
;
and
that
because
it
was
a
Commission
upon
a
particular
Complaint
,
made
by
a
single
expelled
Fellow
,
for
a
particular
Wrong
and
Injury
supposed
to
be
done
to
him
,
and
not
a
general
Authority
to
exercise
the
Visitatorial
Power
,
which
is
to
inquire
into
all
Abuses
,
&c.
Colmer
complains
that
he
was
expelled
without
just
Cause
,
and
seeks
to
the
Visitor
,
for
redress
,
they
having
expelled
him
for
an
Offence
,
of
which
he
thought
himself
innocent
;
and
the
Visitor
sends
his
Commissary
to
examine
this
particular
matter
.
Then
't
was
urged
,
That
tho'
a
Visitor
be
restrained
by
the
Constitutions
of
the
Colledge
,
from
visiting
ex
officio
,
but
once
in
five
Years
;
yet
as
a
Visitor
,
he
had
a
constant
standing
Authority
at
all
times
to
hear
the
Complaints
,
and
redress
the
Grievances
of
the
particular
Members
;
and
that
is
part
of
the
proper
Office
of
a
Visitor
to
determine
particular
Differences
between
the
Members
,
and
thus
is
Littleton's
Text
,
sect.
136.
that
complaint
may
be
made
to
the
Ordinary
or
Visitor
,
praying
him
that
he
will
lay
some
Correction
and
Punishment
for
the
same
,
and
that
such
Default
be
no
more
made
,
&c.
And
the
Ordinary
or
Visitor
of
right
ought
to
do
this
,
&c.
and
so
was
it
held
in
Appleford's
Case
in
the
Court
of
King's
Bench
,
who
was
expelled
upon
a
like
occasion
as
Colmer
was
;
he
appealed
to
the
Bishop
of
Winton
,
who
was
Visitor
,
and
he
confirmed
the
Expulsion
,
and
held
to
be
good
upon
the
Appeal
;
for
the
hearing
of
Appeals
is
a
standing
,
fixed
,
constant
Jurisdiction
.
Visiting
is
one
Act
or
Exercise
of
his
Power
,
in
which
he
is
limited
as
to
time
;
but
redressing
of
Grievances
is
another
,
and
his
proper
Office
and
Business
at
all
times
.
'T
is
the
Case
of
all
the
Bishops
of
England
,
they
can
visit
by
Law
but
once
in
three
years
,
but
their
Courts
are
always
open
to
hear
Complaints
and
Determine
Appeals
;
so
that
here
,
tho'
but
one
Visitation
can
be
in
five
years
without
request
,
yet
the
Power
and
Authority
to
hear
and
examine
any
difference
between
the
Members
,
and
to
relieve
against
any
particular
Injury
,
that
's
continual
,
and
not
limited
.
Then
't
was
argued
,
That
tho'
what
was
done
upon
the
16th
of
June
,
was
with
an
Intention
to
Visit
,
yet
being
denied
to
enter
the
Chappel
,
where
the
Visitation
was
appointed
to
be
held
,
it
was
none
;
and
his
Calling
over
the
Names
,
was
only
to
know
who
hindred
the
Visiting
;
and
his
making
an
Act
of
it
afterwards
,
or
administring
an
Oath
at
the
time
,
can
never
be
called
one
;
tho'
it
hath
been
below
said
to
be
a
tacking
that
of
June
to
that
of
July
:
but
that
cannot
be
,
for
then
it
continued
much
longer
than
was
intended
;
nay
,
much
longer
then
it
can
by
the
Statutes
of
the
Colledge
,
for
that
is
to
cease
in
three
days
.
It
turns
rather
the
other
way
;
having
been
hindred
in
June
,
he
makes
an
Act
of
it
in
July
,
in
order
to
call
them
to
an
account
for
it
,
as
for
a
Conturnacy
,
and
to
bring
them
to
Judgment
at
his
Visitation
:
'T
was
no
more
then
taking
an
Affidavit
of
the
Service
of
a
Citation
.
The
appointment
of
a
Visitation
in
the
Hall
was
occasioned
by
the
Obstruction
met
with
at
the
Chappel
;
and
't
would
be
a
very
strange
Construction
,
that
when
he
designed
a
Visitation
,
and
was
hindred
,
that
the
Hinderance
and
his
Inquiry
about
it
should
be
called
a
Visitation
;
and
a
former
Contumacy
in
opposing
an
intended
Visitation
,
should
prevent
their
being
subject
to
an
actual
true
one
.
Then
't
was
argued
,
That
there
was
no
necessity
that
there
should
be
the
Consent
of
the
four
Senior
Fellows
to
the
Deprivation
of
the
Rector
;
and
by
one
of
the
Counsel
't
was
owned
,
that
if
such
Consent
had
been
necessary
,
the
Sentence
had
been
a
Nullity
:
But
as
this
Statute
is
framed
,
't
was
argued
,
that
the
Bishop
might
deprive
tho'
they
did
not
concur
,
for
these
Reasons
:
1.
By
the
Statutes
,
the
Bishop
for
the
time
being
,
is
made
the
ordinary
Visitor
of
Exeter
Colledge
,
and
that
where
any
one
is
Visitor
of
a
Colledge
,
he
hath
full
and
ample
Authority
to
Deprive
or
Amove
any
Member
of
the
Colledge
quatenus
Visitor
.
2.
There
is
an
express
Power
given
to
the
Bishop
to
proceed
to
the
Deprivation
of
the
Rector
,
or
the
Expulsion
of
a
Scholar
;
and
this
in
his
Visitation
.
And
3.
The
qualifying
words
do
not
restrain
it
to
be
with
the
Consent
of
the
four
Fellows
;
the
word
is
Deprivatio
as
to
the
Rector
,
and
Expulsio
as
to
the
Scholar
;
tho'
they
are
synonymous
as
to
real
Sense
,
yet
by
this
Statute
they
are
differently
applied
:
Then
it
says
,
If
the
Bishop
do
proceed
,
&c.
that
only
relates
to
the
Case
of
a
Scholar
,
because
the
word
there
used
is
Expulsio
,
which
is
never
applied
but
to
the
amotion
of
a
Scholar
;
and
it
is
impossible
to
relate
to
the
Rector
,
for
then
he
must
consent
to
his
own
Deprivation
,
for
his
particular
Consent
is
mentioned
and
required
,
and
that
is
not
to
be
expected
:
And
in
this
case
,
the
Consent
of
the
Senior
Fellows
,
without
that
of
the
Rector
,
is
not
sufficient
.
But
then
the
subsequent
words
are
,
That
if
the
Rector
be
deprived
by
the
Bishop's
Commissary
,
with
the
Consent
of
the
Senior
Fellows
,
he
may
appeal
to
the
Bishop
:
'T
is
true
,
the
Rector
hath
that
liberty
,
if
the
Commissary
do
deprive
him
;
but
there
are
no
words
that
do
abridge
the
Bishop's
own
Power
.
The
Commissary's
Power
is
restrained
by
those
words
,
To
have
the
Consent
,
&c.
but
the
Bishop's
own
Power
hath
no
such
qualification
.
It
is
objected
,
That
't
is
unreasonable
to
imagine
a
greater
Power
in
the
Visitor
,
over
the
Rector
,
then
over
the
Scholars
.
But
the
Question
is
not
,
What
was
fit
and
reasonable
for
the
Founder
to
have
done
;
but
to
consider
,
upon
perusal
of
the
Statutes
,
what
he
hath
done
?
Suppose
he
doth
give
such
an
absolute
Authority
,
't
is
what
he
had
over
the
thing
granted
;
he
might
have
reserved
to
himself
a
Power
of
Revocation
,
or
what
other
Power
he
thought
fit
;
and
by
the
same
reason
he
might
give
the
like
to
a
Visitor
of
his
appointment
;
and
having
done
so
,
it
must
be
supposed
that
he
had
some
Reasons
for
so
doing
.
The
Rector
hath
a
Priviledge
,
not
to
be
deprived
without
the
benefit
of
Appeal
,
if
't
were
by
the
Commissary
:
The
Scholars
have
no
Appeal
.
He
might
think
fit
to
trust
the
Rector
with
his
Visitor
the
Bishop
,
as
supposing
more
care
would
be
taken
by
him
of
the
Head
of
the
Colledge
,
then
of
Inferiour
Members
.
But
the
Query
is
not
,
What
Reason
induced
the
Founder
to
make
those
Appointments
?
He
was
Master
of
his
own
Charity
,
and
might
qualifie
it
as
he
pleased
;
and
he
hath
given
it
under
this
qualification
,
That
the
Bishop
is
made
Visitor
,
and
might
deprive
the
Rector
,
as
he
hath
done
,
according
to
the
Statutes
and
Constitutions
of
this
Colledge
.
Then
2.
the
sufficiency
of
the
Cause
of
this
Deprivation
is
never
to
be
called
in
question
,
nor
any
Inquiry
to
be
made
in
Westminster-hall
into
the
Reasons
or
Causes
of
such
Deprivation
,
if
the
Sentence
be
given
by
him
that
is
the
proper
Visitor
,
created
so
by
the
Founder
,
or
by
the
Law
.
'T
was
urged
,
That
there
are
in
Law
two
sorts
of
Corporations
aggregate
,
consisting
of
many
Persons
;
such
as
are
for
Publick
Government
,
and
such
as
are
for
Private
Charity
.
Those
that
are
for
Publick
Government
of
a
City
,
Town
,
Mystery
,
or
the
like
,
being
of
Publick
Concern
,
are
to
be
governed
according
to
the
Laws
of
the
Land
,
and
to
be
regulated
and
reformed
by
the
Justice
of
Westminster-hall
;
of
these
there
are
no
private
Founders
,
and
consequently
no
particular
Visitors
:
There
are
no
Patrons
of
these
;
they
only
subsist
by
virtue
of
the
King's
Letters
Patents
,
or
Custom
and
Usage
,
which
supposes
Letters
Patents
,
and
are
supported
and
ruled
by
the
Methods
of
Law
:
Therefore
,
if
a
Corporation
be
made
for
the
Publick
Government
of
a
Town
or
City
,
and
there
is
no
Provision
in
the
Charter
how
the
Succession
shall
be
,
the
Law
supplies
the
Defect
of
that
Constitution
,
and
says
it
shall
be
by
Election
,
as
Mayor
,
Aldermen
,
and
Common-Council-men
,
and
the
like
;
and
so
is
1
Rolls
Abridg.
513.
But
private
and
particular
Corporations
for
Charity
,
Founded
and
Endowed
by
private
persons
,
are
subject
to
the
particular
Government
of
those
who
Erect
them
:
therefore
,
if
there
be
no
visitor
appointed
;
in
all
such
cases
of
Elemosmary
Corporations
,
the
Law
doth
appoint
the
Founder
and
his
Heirs
to
be
Visitors
:
They
are
Patrons
,
and
not
to
be
guided
by
the
common
known
Laws
and
Rules
of
the
Kingdom
;
but
such
Corporations
are
as
to
their
own
Affairs
to
be
governed
by
the
particular
Laws
and
constitutions
assigned
them
by
the
Founder
.
Though
some
have
said
,
that
the
Common-Law
doth
not
appoint
any
Visitation
or
Visitor
at
all
;
yet
't
is
plain
,
that
it
doth
in
defect
of
a
particular
appointment
;
it
makes
the
Founder
Visitor
;
and
it
is
not
at
his
pleasure
whether
there
shall
be
a
Visitor
or
not
,
but
if
he
is
silent
during
his
Life-time
,
the
right
will
descend
to
his
Heirs
,
and
so
is
Yelv.
&
2
Cro.
where
it
is
admitted
on
all
hands
,
that
the
Founder
is
Patron
,
and
as
Patron
,
is
Visitor
,
if
no
particular
Visitor
be
assigned
,
8.
Edw.
7
,
8.
8
Assis
'
29.9
Hen.
6.33
.
1
Inst.
96.
so
that
Patronage
and
Visitation
,
are
necessary
consequents
,
one
upon
another
;
for
this
Visitatorial
Power
was
not
introduced
by
any
Canons
or
Constitutions
Ecclesiastical
,
it
is
an
appointment
of
the
Law
;
it
ariseth
from
the
property
which
the
Founder
had
in
the
Lands
assigned
to
support
the
Charity
:
And
as
he
is
the
Author
of
the
Charity
,
the
Law
gives
him
and
his
Heirs
a
Visitatorial
Power
,
i.e.
an
Authority
to
inspect
their
Actions
,
and
regulate
their
Behaviour
as
he
pleaseth
:
For
it
is
not
fit
,
that
the
Members
who
are
indowed
,
and
that
have
the
Charity
bestowed
upon
them
,
should
be
left
to
themselves
,
but
they
ought
to
pursue
the
intent
and
designs
of
him
that
bestowed
it
upon
them
.
Where
the
Poor
are
not
incorporated
,
i.e.
they
who
are
to
have
the
Charity
,
but
Trustees
are
appointed
,
there
is
no
Visitatorial
Power
,
because
the
interest
of
the
Revenue
is
not
vested
in
them
;
but
when
they
who
are
to
enjoy
the
benefit
of
the
Gift
are
incorporated
,
there
to
prevent
all
perverting
of
the
Charity
,
there
the
Law
doth
not
establish
a
Visitatorial
Power
:
and
it
being
a
Creature
of
the
Founders
,
't
is
reasonable
that
he
and
his
Heirs
should
have
that
Power
,
unless
it
were
devolved
elsewhere
.
'T
was
further
argued
,
that
in
our
Old
Books
deprived
by
Patron
,
and
deprived
by
Visitor
are
all
one
,
for
this
Authority
to
visit
is
a
benefit
that
naturally
springs
out
of
the
Foundation
,
and
it
was
in
his
power
,
if
he
pleased
,
to
transfer
it
to
another
,
and
where
he
hath
done
so
,
the
other
will
have
the
same
right
and
Authority
as
the
Founder
had
.
There
's
no
manner
of
difference
between
an
Hospital
and
a
College
,
except
only
in
degree
;
An
Hospital
is
for
those
that
are
poor
and
mean
,
or
Sick
,
&c.
a
College
is
for
another
sort
of
persons
,
and
to
another
intent
,
the
former
is
to
maintain
and
support
them
,
this
is
to
Educate
them
in
Learning
,
that
have
not
otherwise
wherewithal
to
do
it
:
But
still
it
is
much
within
the
same
reason
of
that
of
an
Hospital
;
and
if
in
an
Hospital
,
the
Master
and
Poor
are
incorporated
;
't
is
a
College
having
a
common
Seal
to
act
by
,
though
it
bears
not
that
name
,
because
it
is
of
an
inferiour
degree
;
and
in
both
cases
there
must
be
a
Visitor
,
as
both
are
Elemosinary
.
A
Visitor
being
then
of
necessity
created
by
the
Law
,
(
as
8
Edw.
3.69
,
70.
Every
Hospital
is
visitable
,
if
lay
by
the
Patron
,
if
Spiritual
by
the
Ordinary
,
)
he
is
to
Judge
,
and
he
may
Expel
;
and
as
it
is
8
Assis
'
29
,
30.
he
may
deprive
;
the
only
Query
is
,
if
he
were
Visitor
at
this
time
,
for
it
hath
been
and
must
be
agreed
on
all
hands
,
that
Quatenus
Visitor
,
he
might
deprive
;
if
he
be
a
Visitor
as
Ordinary
,
there
lieth
an
Appeal
from
his
deprivation
,
but
if
as
Patron
,
there
's
none
;
and
then
that
deprivation
,
whether
right
or
not
,
must
stand
.
As
to
the
Objection
,
that
't
is
not
the
Sentence
of
a
Court
,
and
therefore
not
Conclusive
;
't
is
not
material
whether
it
be
a
Court
or
not
,
but
the
Query
is
,
if
he
had
jurisdiction
and
conusance
of
the
Person
and
thing
,
and
if
he
had
,
then
his
sentence
holds
:
and
where
the
Founder
hath
not
thought
fit
to
direct
an
Appeal
,
no
appeal
lies
,
nay
not
to
the
Common-Law
Courts
:
the
Founder
having
put
all
under
the
Judgment
of
the
Visitor
,
it
must
continue
so
:
He
might
have
ordered
it
,
that
the
Rector
should
continue
only
during
the
pleasure
of
the
Visitor
,
but
now
he
hath
left
it
to
his
wisdom
according
to
the
Statutes
.
He
is
a
Judge
not
only
in
particular
by
appointment
,
but
as
he
is
Constituted
a
Visitor
in
general
;
then
in
pleading
of
a
Sentence
of
deprivation
,
there
is
no
necessity
of
shewing
the
cause
,
the
cause
is
not
traversable
even
in
a
Visitation
,
so
is
Rastal
.
1.11
Hen.
7.27
.
7
Rep.
Kenne's
Case
.
9
Edw.
4.24
.
Suppose
this
Rectory
had
been
a
sole
Corporation
,
and
not
part
of
a
Corporation
aggregate
,
as
it
is
,
Consisting
of
Rector
and
Scholars
,
and
Dr.
Bury
had
brought
an
assize
,
and
this
deprivation
had
been
pleaded
,
it
had
been
good
to
have
said
that
the
Visitor
certis
de
Causis
ipsum
adinde
moventibus
,
had
deprived
him
:
every
thing
that
is
traversable
must
be
expressed
with
certainty
,
but
the
cause
need
not
be
so
in
this
Case
.
Now
't
is
strange
,
that
pleading
a
Sentence
without
a
Cause
,
should
be
good
,
and
the
finding
of
a
Sentence
in
like
manner
in
a
special
verdict
should
not
be
good
:
If
in
Pleading
it
be
not
traversable
,
't
is
the
strongest
Argument
,
that
the
Cause
is
not
to
be
inquired
into
;
the
having
no
Appeal
doth
not
lessen
the
validity
of
the
Sentence
,
it
doth
only
shew
the
Rector's
place
,
not
to
be
so
certain
and
durable
,
as
in
other
cases
they
are
,
where
Appeals
are
allowed
.
The
Case
of
Caudrys
,
in
the
High
Commission
Court
,
is
as
strong
;
a
Sentence
of
deprivation
,
no
Appeals
,
and
the
Sentence
found
and
no
cause
shewn
,
yet
held
good
:
't
is
no
Answer
to
say
,
that
that
was
by
the
Ecclesiastical
Law
,
how
is
it
the
Ecclesiastical
Law
,
that
a
Man
shall
be
concluded
by
one
Sentence
without
Appeal
;
no
,
it
was
,
because
't
was
by
a
Court
that
had
Jur
'
and
the
Sentence
was
not
the
weaker
,
or
the
cause
of
it
more
inquirable
,
because
there
's
no
Appeal
.
'T
was
by
the
Ecclesiastical
Constitution
,
that
the
Commissioners
had
that
Power
,
but
that
was
established
by
the
Law
of
the
Land
,
and
so
is
the
Visitatorial
Power
,
the
one
Authority
is
as
much
derived
from
the
Law
as
the
other
.
Bird
and
Smith's
Case
in
Moore's
Rep.
deprivation
for
not
conforming
to
the
Canons
;
held
good
in
like
manner
.
As
to
the
Case
of
Coueney
in
Dyer
.
209.
and
that
in
Bagges's
Case
,
11
Rep.
99.
they
are
the
same
as
to
this
matter
,
though
in
Two
Books
,
an
assize
because
no
Appeal
;
he
quotes
Books
for
it
,
but
upon
a
perusal
they
will
not
warrant
the
distinction
,
for
the
party
is
as
much
concluded
in
the
one
Case
as
in
the
other
:
't
is
reasonable
to
suspect
that
Case
not
to
be
Law
,
because
that
is
impracticable
,
which
it
is
brought
to
prove
.
The
Head
of
a
College
cannot
maintain
an
Assize
for
his
Office
of
Headship
:
He
hath
not
such
an
Estate
as
will
maintain
that
writ
,
therefore
to
give
that
instance
against
us
,
is
hard
,
the
Rector
hath
no
such
sole
Sezin
,
the
whole
body
of
the
College
have
an
interest
therein
:
He
hath
no
Title
to
the
Money
in
his
own
Right
,
till
by
consent
they
are
distributed
,
and
after
such
distribution
,
't
is
not
the
Rector's
Money
,
but
Dr.
Bury's
;
He
is
the
only
visible
head
of
the
Body
in
deed
,
but
has
no
single
right
.
In
Appleford's
Case
,
the
like
Argument
was
drawn
from
this
Case
for
a
Mandamus
,
and
insisted
that
he
might
have
an
assize
,
but
said
by
the
Lord
Hales
,
that
that
was
impossible
:
and
in
truth
,
there
's
no
difference
between
this
Case
and
that
of
a
Mandamus
,
there
was
a
return
that
he
was
removed
,
pro
crimine
enormi
,
and
Appealed
to
the
Bishop
of
Winton
,
who
confirmed
the
amotion
,
and
the
particular
cause
was
not
at
all
returned
,
and
held
good
,
because
there
was
a
local
Visitor
,
who
had
given
a
Sentence
,
and
all
parties
were
concluded
by
it
,
the
same
being
done
by
the
Power
of
that
Government
,
which
the
Founder
had
thought
sit
to
put
them
under
.
Now
't
was
argued
from
hence
,
That
this
was
an
express
Case
,
If
the
Cause
of
the
Deprivation
be
examinable
in
the
Courts
of
Common
Law
,
why
not
upon
a
Mandamus
as
well
as
in
an
Ejectment
.
The
Lord
Hales
in
that
Case
of
Appleford
,
took
it
for
clear
Law
,
That
the
Sentence
was
as
binding
as
a
Judgment
in
an
Assize
:
He
is
made
a
Judge
,
and
his
Person
particularly
designed
by
the
Founder
,
but
he
hath
his
Authority
from
the
Law
;
and
since
the
Founder
hath
trusted
the
Matter
to
his
Discretion
,
't
is
not
to
be
suspected
that
he
hath
done
,
or
will
do
otherwise
than
right
.
Then
in
the
next
place
't
was
argued
,
That
there
doth
not
appear
any
Injustice
in
the
Sentence
,
and
consequently
it
ought
to
be
presumed
Just
;
Credence
is
to
be
given
to
a
Person
that
exerciseth
Judicial
Power
,
if
he
keep
within
his
Jurisdiction
.
The
Law
hath
respect
not
only
to
Courts
of
Record
,
and
Judicial
Proceedings
in
them
;
but
even
to
all
other
Proceedings
,
where
the
Person
that
gives
his
Judgment
or
Sentence
,
hath
a
Judicial
Authority
;
and
here
's
no
Fault
found
in
the
Sentence
;
the
Jury
have
not
so
much
as
found
the
Matter
and
Ground
of
it
to
be
untrue
in
Fact
,
or
insufficient
in
Law
.
Then
't
was
urg'd
,
That
the
Cause
of
Deprivation
here
was
just
,
it
being
for
Contumacy
.
If
the
Bishop
had
power
to
visit
in
June
,
as
he
had
,
and
was
hindred
by
their
shutting
the
Doors
,
whereupon
he
went
away
without
doing
any
thing
,
and
came
again
in
July
,
when
he
held
his
Visitation
,
and
they
behaved
themselves
Contumaciously
,
and
refused
to
submit
to
his
Authority
;
this
was
contra
officii
sui
debitum
;
't
is
reasonable
that
both
Head
and
Members
should
submit
to
the
Visitor
;
Contumacy
is
a
good
Cause
of
Deprivation
,
and
upon
good
reason
,
because
it
hinders
an
Inquiry
into
all
other
Causes
:
'T
was
held
so
in
Bird
and
Smith's
Case
,
and
in
Allen
and
Nash's
Case
;
quia
fuit
refractarius
:
Now
tho'
Contumacy
be
not
one
of
the
Causes
mentioned
in
the
Statutes
,
yet
't
was
certainly
contrary
to
their
Duty
;
turning
their
Backs
upon
the
Visitor
,
not
appearing
upon
Summons
,
refusing
to
be
examined
,
was
an
Offence
,
and
contrary
to
what
the
Statutes
require
.
He
is
to
inspect
the
state
of
the
Colledge
,
and
each
Member's
particular
behaviour
;
and
now
when
the
Visitor
comes
to
make
such
an
Inquisition
,
and
the
Head
or
the
Members
withdraw
themselves
,
and
will
not
appear
to
be
examined
,
if
this
be
not
a
good
Cause
of
Deprivation
,
nothing
can
be
,
for
that
nothing
else
can
ever
be
inquired
into
.
As
for
that
Statute
which
refers
to
the
Causes
for
which
a
Rector
may
be
deprived
,
it
doth
not
relate
to
a
Deprivation
in
a
Visitation
;
but
shews
the
manner
,
how
the
Colledge
is
to
proceed
,
if
he
be
guilty
of
such
Offences
;
they
may
complain
at
any
time
to
the
Visitor
,
if
he
wasts
the
Revenues
,
or
behave
himself
scandalously
,
and
upon
request
will
not
resign
,
and
they
may
Article
against
him
out
of
a
Visitation
;
but
when
he
comes
to
execute
his
Power
in
his
quinquennial
Visitation
,
he
is
not
confined
to
proceed
only
upon
the
Information
of
the
Fellows
,
but
is
to
inquire
into
all
the
Affairs
of
the
Colledge
,
and
may
proceed
to
deprivation
as
he
sees
Cause
.
Now
Contumacy
is
a
causa
of
a
Forfeiture
of
his
Office
,
which
is
subject
to
the
power
of
the
Visitor
by
the
original
Rules
of
the
Foundation
;
and
to
evade
or
contumaciously
to
refuse
or
deny
a
Submission
to
that
Power
,
is
an
Offence
against
the
Duty
of
his
Place
,
and
consequently
a
just
Cause
of
Deprivation
;
so
that
upon
the
whole
Matter
,
't
was
inferred
and
urged
,
that
the
Bishop
hath
a
Visitatorial
Power
vested
in
him
to
deprive
the
Rector
without
consent
of
the
four
Senior
Fellows
.
And
2.
that
the
Justice
of
the
Sentence
is
not
examinable
in
Westminster-hall
.
And
3.
that
if
it
were
,
and
the
Cause
necessary
to
be
shewn
,
here
was
a
good
one
,
an
affronting
the
very
Power
of
Visiting
,
and
fetting
up
for
Independency
,
contrary
to
the
Will
of
the
Founder
;
and
therefore
it
was
prayed
that
the
Judgment
should
be
reversed
.
On
the
other
side
,
't
was
argued
by
the
Counsel
with
the
Judgment
,
That
this
Sentence
was
void
;
that
't
was
a
meer
Nullity
;
that
this
proceeding
had
no
Authority
to
warrant
it
;
and
that
it
being
done
without
Authority
,
't
is
as
if
done
by
a
meer
Stranger
;
and
whether
it
be
such
an
Act
,
or
not
,
is
examinable
at
Law
;
for
that
the
Power
of
a
Visitor
must
be
considered
,
as
a
meer
Authority
or
a
Trust
,
and
it
is
one
,
or
rather
both
,
and
then
either
way
't
is
examinable
;
for
every
Authority
or
Trust
hath
,
or
ought
to
have
,
some
Foundation
to
warrant
it
;
and
if
that
Foundation
which
warrants
it
,
hath
limited
any
Rules
or
Directions
,
by
which
it
is
to
be
executed
,
then
those
Directions
ought
to
be
pursued
;
and
if
they
are
not
,
't
is
no
Execution
of
the
Authority
given
,
or
Trust
reposed
;
and
if
not
,
't
is
a
void
Act
,
a
meer
Nullity
,
and
consequently
't
is
that
of
which
every
Man
may
take
notice
and
advantage
.
Then
't
was
said
,
That
it
must
be
agreed
that
of
a
void
thing
all
Persons
may
take
advantage
,
and
contest
it
in
a
Collateral
Action
,
and
that
altho'
it
have
the
form
and
semblance
of
a
Judicial
Proceeding
:
and
for
this
was
cited
the
Case
of
the
Marshalsea's
,
10
Rep.
76.
as
a
full
Authority
;
the
Resolution
was
,
That
when
a
Court
hath
no
Jurisdiction
of
a
Cause
,
there
all
the
proceeding
is
coram
non
judice
,
and
Actions
lye
against
any
Person
pretending
to
do
an
Act
by
colour
of
such
Precept
or
Process
,
without
any
regard
to
its
being
a
Precept
or
Process
;
and
therefore
the
Rule
,
qui
jussu
judicis
aliquid
fecerit
,
non
videtur
dolo
malo
fecisse
,
quia
parere
necesse
est
,
will
not
hold
,
where
there
is
no
judex
,
for
't
is
not
of
necessity
to
obey
him
who
is
not
Judge
of
the
Cause
;
and
therefore
the
Rule
on
the
other
side
is
true
,
judicium
a
non
suo
judice
datum
,
nullius
est
momenti
;
and
so
was
it
held
in
the
Case
of
Bowser
and
Collins
,
22
Edw.
4.33
.
per
Pigot
,
and
19
Edw.
4.8
.
And
therefore
if
the
Court
of
Common
Bench
held
Plea
of
an
Appeal
of
Felony
,
't
is
all
void
;
but
it
must
be
owned
,
that
the
meer
erroneous
procedure
of
a
Court
which
hath
a
General
Jurisdiction
of
the
Subject
Matter
is
not
examinable
in
a
Collateral
Action
,
whether
upon
true
Grounds
,
or
not
;
and
yet
if
it
be
a
limited
Jurisdiction
,
and
those
limits
are
not
observed
,
even
that
is
coram
non
judice
;
and
holds
with
respect
to
Courts
held
by
Authority
of
Law
,
which
are
much
stronger
then
the
Cases
of
Power
created
or
given
by
a
private
Person
.
A
Sheriff
is
bound
by
Law
to
hold
his
turn
within
a
Month
after
Michaelmas
,
and
he
holds
it
after
the
Month
,
and
takes
a
Presentment
at
that
time
,
if
that
be
removed
into
the
King's
Bench
,
the
Party
shall
not
answer
it
,
but
be
discharged
,
because
the
Presentment
was
void
,
&
coram
non
judice
;
for
that
the
Sheriff
at
that
time
had
no
Authority
;
and
yet
in
that
Case
his
Authority
and
Jurisdiction
extended
to
the
Person
and
Thing
:
The
same
Law
for
a
Leet
,
unless
Custom
warrants
the
contrary
,
and
then
that
Custom
must
be
pursued
.
The
Commissioners
of
Sewers
have
a
limited
Authority
;
and
if
the
number
of
Persons
,
or
other
Requisites
mentioned
in
their
Commission
,
be
not
pursued
,
what
they
do
which
exceeds
it
,
is
void
;
and
yet
they
have
a
kind
of
Legislative
Authority
;
so
is
it
in
Sir
Henry
Mildmay's
Case
,
2
Cro.
336.
and
there
they
had
an
Authority
both
of
Thing
and
Person
,
but
did
not
observe
the
Rules
prescribed
in
the
Gift
of
that
Authority
,
according
to
the
23
Hen.
8.
cap.
5.
and
no
reason
could
,
or
can
be
given
for
that
Resolution
,
but
that
it
was
a
particular
limited
Authority
:
And
then
,
to
apply
this
to
the
present
Case
,
the
Sentence
in
question
can
no
more
aggrieve
the
Defendant
,
then
an
Order
pronounced
or
made
by
a
non
Judex
,
if
it
be
not
agreeable
to
the
Power
given
by
the
Statutes
;
and
this
appears
further
from
Davis's
Rep.
46.
where
the
same
Distinction
is
allowed
.
Nay
,
in
some
Cases
,
the
Award
of
a
wrong
Process
is
void
;
as
if
by
a
Steward
of
a
Mannor
Court
,
that
a
Capias
should
issue
,
where
the
same
doth
not
lye
,
but
only
an
Attachment
,
Turville
and
Tipper's
Case
,
Latch
.
223.
A
Court
of
Pypowders
hath
Jurisdiction
of
an
Action
of
the
Case
;
yet
if
it
holds
Plea
of
Case
for
Slander
,
't
is
all
void
,
tho'
the
words
were
spoken
within
the
Boundaries
of
the
Fair
,
because
the
Jurisdiction
is
limited
;
so
that
if
the
Thing
,
the
Time
,
the
Person
,
or
the
Process
,
be
not
regarded
according
to
the
Authority
given
,
't
is
all
void
,
and
an
Advantage
may
be
taken
of
it
by
any
Body
,
where
the
Plaintiff
Claims
or
makes
his
Demand
by
colour
of
such
Act.
'T
was
further
argued
,
That
the
Reason
given
in
that
Case
of
Latch
,
is
,
because
the
Custom
which
gave
him
his
Authority
,
gave
him
notice
that
such
Process
did
not
lye
;
and
if
any
Man
hath
by
our
Law
any
Estate
,
Right
,
or
Priviledge
,
by
any
particular
means
,
he
is
bound
to
take
notice
of
all
the
Conditions
and
Qualifications
annexed
thereto
:
And
the
Reason
is
just
,
because
the
same
means
,
by
which
he
had
notice
of
the
Benefit
,
gives
him
notice
of
the
restrictive
Limitation
and
Penalty
,
and
so
was
it
held
in
the
Case
of
Fry
and
Porter
.
By
our
Law
no
Benefit
can
accrue
to
a
Man
by
a
Judgment
given
on
a
Thing
arising
extra
potestatem
Curiae
,
in
case
of
a
particular
and
limited
Jurisdiction
;
as
in
the
Case
of
Kingston
upon
Hull
,
March
8.
which
held
Plea
of
Debt
upon
a
Bond
made
extra
Jur'
,
&c.
and
a
Jud
'
,
and
Capias
executed
,
and
an
Escape
;
and
no
Action
lay
for
the
Escape
,
because
all
was
void
,
and
coram
non
Judice
:
In
the
same
Book
,
March
.
117
,
118.
Dye
and
Olive's
Case
,
in
False
Imprisonment
,
Plea
that
he
was
Serjeant
at
Mace
belonging
to
a
Court
of
Record
,
and
that
a
Warrant
was
directed
to
him
to
Arrest
the
Plaintiff
pro
quodam
Contemptu
,
and
held
not
good
,
because
not
shewn
,
in
what
Action
,
and
how
within
the
Jurisdiction
;
and
if
not
within
it
,
't
was
coram
non
judice
,
and
void
,
argued
by
Rolls
and
Maynard
.
Then
't
was
argued
,
That
this
was
a
limited
qualified
Power
;
that
the
Visitor
was
a
Creature
of
the
Founders
;
and
if
it
had
been
the
Heir
of
the
Founder
,
he
had
been
as
much
bound
and
restrained
by
the
Statutes
,
as
a
Stranger
:
and
tho'
the
Law
should
be
agreed
to
be
,
as
is
pretended
,
that
it
appoints
a
Visitor
,
yet
still
(
whether
he
be
the
Heir
or
Nominee
of
the
Founder
)
he
is
an
Officer
only
within
the
Limits
and
Rules
of
the
Foundation
,
and
the
Statutes
made
thereupon
:
As
he
hath
a
Visitatorial
Power
only
over
this
Colledge
,
so
he
hath
it
only
after
the
manner
in
which
't
is
given
to
him
.
If
the
Founder
had
made
no
particular
Visitor
,
but
yet
had
appointed
that
the
same
should
be
visitable
at
such
a
time
,
and
in
such
a
form
,
he
himself
had
been
bound
by
these
Rules
;
and
if
he
would
have
been
so
confined
,
with
much
more
,
or
at
least
with
the
same
Reason
,
ought
his
Nominee
;
for
cujus
est
dare
,
ejus
est
disponere
;
and
every
Argument
which
hath
been
urged
for
the
Rector's
being
subject
to
the
Rules
of
the
Foundation
,
may
likewise
be
applied
to
that
of
the
Visitor
:
He
that
made
the
Visitor
,
may
restrain
,
shape
,
and
modifie
the
Power
which
he
gives
him
:
He
might
have
made
him
Visitor
only
once
in
his
Life
,
or
only
upon
Request
,
and
have
left
all
other
Jurisdiction
to
the
Rector
and
Fellows
.
But
further
,
here
he
is
found
to
be
Visitor
only
secundum
formam
statut'
&
vigore
statut'
,
and
to
execute
those
Statutes
;
and
that
which
makes
him
a
Visitor
,
makes
him
such
thus
and
thus
qualified
,
and
no
otherwise
:
whatsoever
Power
or
Authority
the
Name
or
Office
of
a
Visitor
may
import
ex
vi
termini
,
no
Man
can
say
but
this
Visitor
is
controuled
by
the
Statutes
,
which
make
him
so
;
now
had
there
been
no
Statutes
,
he
had
never
been
Visitor
;
then
these
Statutes
making
him
a
Visitor
,
upon
particular
Terms
and
Conditions
,
Times
and
Occasions
;
extra
these
Terms
and
Conditions
he
is
no
Visitor
at
all
;
this
seems
plain
and
natural
:
So
that
if
he
exceeds
the
Bounds
prescribed
to
him
as
Visitor
,
he
doth
not
act
as
Visitor
;
for
all
Powers
,
Authorities
,
and
Jurisdictions
,
especially
such
as
are
created
by
private
Persons
,
must
be
executed
according
to
the
express
Institution
,
or
plain
meaning
of
the
Party
that
created
them
,
and
according
to
the
Circumstances
,
with
which
he
hath
circumscrib'd
them
:
So
is
the
Rule
in
Berwick's
Case
,
5
Rep.
94.
and
1
Inst.
113.
and
258.
An
Executor
is
an
Officer
or
Person
instrusted
,
which
is
taken
notice
of
by
the
Law
,
yet
in
his
Creation
he
may
be
limited
quoad
the
Estate
in
one
Country
,
or
quoad
one
Particular
,
and
he
can't
intermeddle
any
further
;
but
Administration
shall
be
granted
as
to
the
rest
.
Then
't
is
observable
,
That
this
Statute
Visitor
is
not
a
Court
of
Record
,
nor
any
Court
at
all
,
but
rather
like
an
Arbitrator
under
certain
Directions
,
he
can
neither
meddle
at
another
Time
,
or
with
other
Matters
,
or
in
other
Manner
,
then
what
is
prescribed
.
But
admitting
it
a
sort
of
Judicature
,
here
's
no
Appeal
or
Writ
of
Error
,
or
Prohibition
or
Mandamus
lies
;
nay
,
the
Visitor
himself
cannot
relieve
against
his
own
Sentence
,
or
restore
the
Party
deprived
the
next
day
;
but
the
Place
being
vacant
,
a
right
of
Election
accrues
to
the
Fellows
;
't
is
therefore
unreasonable
to
suppose
him
not
restrained
,
or
that
his
Acts
,
if
exceeding
the
Limits
and
Rules
set
him
,
shall
be
conclusive
and
binding
.
This
is
like
a
Lay-Hospital
,
't
is
not
a
Religious
Body
,
tho'
some
call
it
mixt
;
and
in
case
of
Temporal
Lay-Offices
,
there
must
be
some
Remedy
at
Law
,
as
is
13
Rep.
70.
so
is
Dyer
209.
and
3
Inst.
340.
Where
no
Appeal
is
allowed
,
another
Examination
must
be
admitted
;
and
thus
seems
the
8
Assis
.
pl.
29.
tho'
it
hath
been
quoted
on
the
other
side
;
If
the
Warden
of
an
Hospital
be
irregularly
deprived
,
he
shall
have
his
Remedy
at
Law
;
and
13
Assis.
2.
to
the
same
effect
:
Bagges's
Case
,
11
Rep.
repeats
the
same
Case
,
which
shews
Coke's
Opinion
to
concur
with
it
;
and
tho'
an
Assize
doth
not
properly
lye
,
yet
the
meaning
is
,
he
shall
have
Relief
,
i.
e.
such
Suit
at
Law
as
is
proper
to
his
Case
:
The
same
Distinction
is
allowed
in
Dr.
Sutton's
Case
,
Latch
.
229.
And
that
a
Remedy
is
given
by
the
Law
in
this
Case
of
a
Temporal
Property
,
seems
to
be
plainly
affirmed
in
the
Statute
of
24
Hen.
8.
cap.
12.
And
further
,
Tho'
strictly
and
properly
it
were
not
of
Common
Law
connusance
,
yet
it
falling
incidently
to
be
a
Question
upon
trial
of
a
Title
,
the
Court
before
whom
that
Suit
depends
,
must
examine
that
incident
;
as
in
case
of
an
Issue
,
lawfully
joyned
in
Marriage
or
not
,
the
Trial
shall
be
by
Certificate
of
the
Ordinary
;
but
if
it
be
a
Question
upon
the
Trial
of
a
Title
to
Land
,
the
Matter
shall
be
tried
and
judged
without
Certificate
.
The
wisdom
of
our
Law
hath
been
such
,
as
very
rarely
to
trust
any
of
the
Courts
of
Justice
with
the
final
determination
of
matters
of
Law
in
the
first
Instance
;
and
't
would
be
strange
that
this
Case
of
a
Visitor
should
stand
single
by
it self
.
Besides
to
prevent
a
failure
of
Justice
,
the
Law
doth
of
necessity
admit
of
several
other
provisions
and
methods
of
Examination
or
Tryal
,
than
what
the
subject
matter
or
person
would
properly
in
their
own
nature
require
,
especially
in
point
of
remedy
and
relief
,
as
appears
in
Dormer's
Case
,
5
Rep.
40.
and
1
Inst.
54.
2
Roll's
Abridg
.
587.
now
here
is
no
other
remedy
,
nor
other
way
of
trial
,
for
Deprivation
is
not
triable
by
Certificate
,
but
only
in
case
of
an
Ecclesiastical
person
.
As
to
the
Objection
from
Appleford's
Case
,
Sid.
71.
there
that
Writ
was
fully
answered
,
and
they
could
not
Examine
into
the
truth
and
falsity
of
that
Answer
,
but
must
leave
the
party
to
his
Action
;
and
it
doth
not
thence
follow
,
That
in
an
Action
,
there
's
no
remedy
:
But
the
strongest
Objection
is
,
that
in
pleading
a
Deprivation
,
you
need
not
shew
the
Cause
,
and
it
must
be
taken
sor
just
and
good
,
as
Moore
781.
Jones
393.
Moore
228.
2
Roll's
Abridg.
219.
9
Edw.
4.25
.
that
need
only
shew
by
whom
:
All
these
stand
upon
the
same
foundation
,
they
were
by
Authority
Ecclesiastical
,
and
must
stand
till
Repealed
;
and
even
those
Cases
of
the
High
Commission
Court
,
they
were
by
the
course
of
the
Ecclesiastical
Law
,
which
was
saved
to
them
by
the
Proviso
,
in
1
Eliz.
and
therefore
shall
be
intended
so
,
till
the
contrary
appear
:
and
even
there
't
was
,
debito
modo
privatus
,
which
implies
,
all
due
requisites
;
but
here
the
whole
is
disclosed
,
upon
a
special
Verdict
;
't
is
not
found
here
,
that
he
was
duly
deprived
;
but
that
he
was
deprived
after
such
a
manner
,
which
if
it
appears
to
have
been
without
Authority
,
must
be
null
:
As
to
Ley's
Opinion
in
Davis
47.
that
a
Sentence
of
Deprivation
in
case
of
a
Donative
by
an
Ordinary
,
was
effectual
in
Law
,
till
Reversed
;
that
's
not
Law
,
for
't
was
all
coram
non
judice
,
Bro.
Praemunire
21.
Nat.
Br.
42.
the
Ordinary
cannot
visit
a
Benefice
Donative
.
Then
they
Object
,
That
this
is
an
Elemosinary
interest
,
and
the
Rector
took
it
under
those
terms
of
subjection
to
such
a
Visitor
,
but
that
is
the
Question
,
what
those
terms
are
,
and
the
consequences
of
such
an
Opinion
may
be
dangerous
to
the
Universities
,
those
Nurseries
of
Learning
and
good
Manners
,
't
is
to
make
them
too
precarious
and
dependent
upon
will
.
And
as
to
the
pretence
that
the
Land
was
the
Founders
,
and
he
might
dispose
of
it
at
pleasure
,
it
was
answered
,
that
before
the
Gift
,
the
Lands
and
the
Profits
and
the
Ownership
were
all
subject
to
the
Common-Law
,
and
the
Owner
could
not
give
such
a
Power
as
is
pretended
,
no
more
than
he
could
oblige
all
differences
about
his
Estate
to
be
finally
determined
by
a
particular
person
,
and
his
Heirs
or
Successors
:
no
Absolute
Power
can
be
fixed
in
this
Nation
by
Custom
,
but
rather
then
the
same
shall
be
allowed
,
the
Custom
shall
be
void
;
1
Inst.
14.
Davis
32.
2
Roll's
Abridg.
265.
Copyholds
were
Anciently
at
mere
will
and
pleasure
,
but
the
Lord
is
now
obliged
to
,
and
by
certain
Rules
:
by
our
Law
the
Power
of
Parents
over
Children
is
qualified
and
restrained
;
't
is
no
Argument
,
to
say
that
the
Visitor
comes
in
loco
or
vice
fundatoris
,
for
the
Alienation
and
the
Statutes
did
oblige
even
himself
:
and
though
perhaps
if
no
Statutes
had
been
made
,
his
Visitatorial
Power
had
been
much
larger
,
yet
since
't
is
limitted
to
once
in
five
Years
,
and
his
Acts
to
be
with
others
consent
,
't
is
as
much
as
if
he
had
given
the
Colledge
a
priviledge
of
exemption
by
Words
Express
,
from
any
Visitation
,
at
all
other
times
,
and
in
all
other
manners
,
than
those
which
are
mentioned
:
then
was
Cited
the
Case
of
Terry
and
Huntington
,
in
Scaccar'
Trin.
20
Car.
II.
in
Hardres's
Rep.
480.
before
Sir
Matthew
Hale
,
Trover
for
Goods
,
seized
by
Warrant
of
the
Commissioners
of
Excise
,
the
Query
was
,
when
they
adjudged
low
Wines
to
be
strong
Wines
perfectly
made
,
upon
12
Car.
II.
cap.
23.
whether
it
might
be
drawn
in
Question
again
by
an
Action
in
Westminster-Hall
,
and
held
it
might
,
though
they
were
Judges
,
and
though
the
Statute
gave
an
Appeal
;
and
the
reasons
given
there
seem
to
reach
this
Case
,
because
they
had
a
stinted
limitted
Jurisdiction
,
and
that
implies
a
Negative
,
viz.
that
they
shall
not
proceed
at
all
in
any
other
Cases
;
and
that
special
Jurisdictions
might
be
and
frequently
were
circumscribed
,
1.
with
respect
to
place
,
as
a
Leet
or
a
Corporation
Court
;
2.
with
respect
to
persons
,
as
in
the
Case
of
the
Marshalsea
;
3.
with
respect
to
the
subject
matter
of
their
Jurisdiction
:
And
if
Judgment
be
given
in
another
place
,
or
upon
other
persons
,
or
about
other
matters
,
that
all
was
void
and
coram
non
judice
;
and
though
't
was
objected
,
that
strong
Wines
were
within
their
Jurisdiction
,
and
that
't
was
only
a
mistake
in
their
Judgment
;
yet
it
appearing
upon
the
special
Verdict
,
that
they
were
low
Wines
,
the
Action
was
held
maintainable
;
this
is
so
plain
,
it
needs
no
Application
.
Then
it
was
argued
,
that
this
Sentence
was
void
,
1.
because
there
was
no
Authority
to
visit
at
this
time
,
there
having
been
a
Visitation
by
the
Commissary
within
five
Years
before
;
that
no
words
in
the
Statute
make
him
a
Visitor
generally
,
but
only
secund'
stat
'
i.e.
upon
request
,
or
without
request
,
a
quinquennio
in
quinquenium
,
Semel
.
now
here
's
no
request
found
;
then
the
Act
of
Dr.
Masters
as
Commissary
is
an
exercise
of
the
Visitor's
Office
;
Colmer's
Appeal
was
to
the
Bishop
as
Visitor
;
Semel
.
implies
a
negation
of
having
it
more
frequent
:
according
to
Grammar
,
it
signifies
once
and
not
often
er
or
,
once
for
all
:
If
Semel
comes
alone
,
without
any
other
Particle
,
then
't
is
but
once
,
and
if
with
another
,
as
ne
Semel
,
't
is
not
once
,
or
never
:
and
the
liceat
Semel
can
have
no
other
Construction
;
it
can't
mean
once
at
the
least
,
as
was
argued
below
,
especially
as
opposed
to
request
:
and
no
Argument
can
be
drawn
from
the
necessity
of
frequent
Visitations
,
for
that
Evils
are
not
to
be
presumed
;
and
over
inferior
Members
,
there
's
a
Power
in
the
Rector
and
four
Seniors
:
now
Dr.
Masters
was
not
requested
by
the
Colledge
,
nay
,
they
protest
against
it
in
some
Degree
,
i.
e.
so
far
as
relates
to
Colmer's
restitution
;
the
Oath
of
a
Scholar
being
against
Appeals
:
and
the
Oaths
and
the
Contents
of
them
are
to
be
deemed
part
of
their
Constitution
;
But
supposing
that
Business
might
be
examined
as
a
thing
proper
for
Consideration
,
when
an
inquiry
is
made
into
the
State
of
the
College
;
and
the
admission
,
continuance
,
and
removal
of
the
Members
is
certainly
one
Article
of
such
inquiry
,
yet
that
must
be
done
in
Visitation
,
and
as
Visitor
,
for
there
's
no
other
Power
found
in
the
serdict
but
that
.
2.
Admitting
that
no
Action
of
Dr.
Masters
to
be
Visitation
,
yet
this
Sentence
is
void
,
because
it
held
above
three
days
,
and
the
Statutes
say
,
after
three
days
it
shall
be
taken
pro
terminat'
&
dissolut'
.
On
the
16.
of
June
he
comes
with
intention
to
visit
,
doth
an
Act
proper
to
his
Office
and
Business
,
examines
the
Summoner
about
the
Citation
;
if
he
had
come
and
only
examined
and
made
no
Decree
,
it
had
been
a
Visitation
;
and
either
't
is
a
quinquennial
one
of
it self
,
or
it
is
a
Commencement
of
one
,
and
either
one
way
or
other
,
it
makes
the
Deprivation
void
:
't
is
afterwards
entred
as
a
Visitatorial
Act
;
Eundem
actum
pro
parte
hujusmodi
negotii
Visitationis
haberi
decrevit
,
and
then
he
adjourns
;
't
is
no
Argument
to
say
that
he
was
hindred
,
for
he
might
have
proceeded
in
absentia
;
and
if
the
16th
of
June
be
tacked
to
it
,
't
is
longer
than
the
time
:
There
needed
no
formal
adjournment
,
for
that
he
is
Authorized
to
proceed
in
a
Summary
way
;
't
is
no
such
absurdity
to
call
that
a
Visitation
which
was
in
some
sort
hindred
,
since
notwithstanding
the
obstruction
some
Acts
were
done
,
and
more
might
have
been
by
adjourning
to
another
place
.
3.
Here
was
no
such
cause
as
could
warrant
a
Deprivation
,
it
was
not
one
of
the
causes
mentioned
in
the
Statutes
,
which
are
not
directions
merely
,
but
they
are
the
constituent
Qualifications
of
the
Power
;
and
Contumacy
is
none
of
the
causes
,
nay
,
here
is
no
Contumacy
at
all
:
The
Offence
of
the
Suspended
Fellows
,
was
only
a
mistake
in
their
Opinions
,
and
the
Doctors
was
no
more
;
and
't
is
not
a
Contumacy
for
refusing
to
answer
to
,
or
for
any
Crime
within
the
Statutes
,
for
there
was
none
of
the
Crimes
mentioned
in
the
Statutes
laid
to
the
charge
of
the
Rector
;
if
the
Crime
charged
had
incurred
Deprivation
,
perhaps
a
Contumacy
might
be
Evidence
of
a
Guilt
of
that
Crime
,
and
so
deserve
the
same
Censure
;
but
Contumacy
in
not
consenting
to
a
Visitation
can
never
be
such
,
especially
when
the
consenting
to
a
Visitation
is
not
required
under
pain
of
Deprivation
.
4.
Admitting
the
Visitor
legally
in
the
Exercise
of
his
Office
,
that
here
was
cause
of
Censure
;
that
the
Cause
or
Crime
was
deserving
of
that
Punishment
which
was
inflicted
;
that
Deprivation
was
a
congruous
Penalty
for
such
an
Offence
:
yet
t
was
argued
,
That
this
Sentence
was
void
;
for
that
the
Visitor
alone
was
in
this
Case
minus
competens
judex
,
because
his
Authority
was
particularly
designed
to
be
exercised
with
the
consent
of
others
,
which
was
wanting
in
this
Case
:
This
was
the
same
as
if
it
had
required
the
concurrence
of
some
other
Persons
Extra
Colleg
'
then
that
such
a
concurrence
was
necessary
,
appears
from
the
words
of
the
Statute
,
his
meaning
seems
plain
upon
the
whole
,
to
require
it
.
A
greater
tenderness
is
all
along
shewn
to
the
Rector
,
then
to
the
Scholars
,
't
is
sine
quorum
consensu
irrita
erit
hujusmodi
Expulsio
&
vacua
ipso
facto
:
and
the
Sentence
it self
shews
it
necessary
,
because
it
affirms
it self
to
be
made
with
such
consent
;
and
it
cannot
be
thought
that
the
Rector
should
be
deprivable
without
their
consent
,
when
the
meanest
Scholar
could
not
.
Then
here
's
no
such
consent
,
for
't
is
not
of
the
four
Seniors
,
but
of
the
four
Seniors
not
Suspended
;
now
this
doth
not
fulfil
the
Command
of
the
Statute
,
for
the
Suspension
doth
not
make
them
to
be
no
Fellows
,
a
Suspended
Fellow
is
a
Fellow
though
Suspended
;
a
Suspension
makes
no
vacancy
;
the
taking
off
of
the
Suspension
by
Sentence
or
by
Effluxion
of
time
,
doth
make
them
capable
of
acting
still
,
without
the
aid
of
any
new
Election
,
and
they
are
in
upon
their
old
choice
,
and
have
all
the
priviledges
of
Seniority
and
Precedency
as
before
.
If
they
ceased
to
be
Fellows
by
the
Suspension
,
then
they
ought
to
undergo
the
Annum
probationis
again
,
and
to
take
the
Oaths
again
:
In
case
of
Benefices
or
Offices
,
Religious
or
Civil
,
Ecclesiastical
or
Temporal
,
't
is
so
;
a
Suspension
in
this
Case
is
only
a
disabling
them
from
taking
the
Profits
during
the
time
it
continues
:
And
't
is
no
Argument
to
say
,
That
their
Concurrence
was
not
necessary
,
for
that
they
had
withdrawn
themselves
,
and
were
guilty
of
Contumacy
;
for
that
a
Man
guilty
of
Contumacy
might
be
present
,
if
withdrawn
from
the
Chapel
,
he
might
be
in
the
Colledge
,
or
in
the
University
,
and
't
is
not
found
that
they
were
absent
:
and
then
their
Consent
not
being
had
,
the
Sentence
was
void
and
null
,
and
consequently
no
Title
found
for
the
Lessor
of
the
Plaintiff
in
the
Action
below
.
It
was
replied
in
behalf
of
the
Plaintiff
,
much
to
the
same
effect
as
't
was
argued
before
,
and
great
weight
laid
upon
the
Contumacy
,
which
hindred
the
observance
of
the
Statutes
;
that
by
allowing
such
a
Behaviour
in
a
Colledge
,
no
Will
of
the
Founder
could
be
fulfilled
,
no
Visitation
could
ever
be
had
;
and
all
the
Statutes
would
be
repealed
or
made
void
at
once
;
that
tho'
this
Crime
was
not
mentioned
,
't
was
as
great
,
or
greater
than
any
of
the
rest
;
that
here
was
an
Authority
,
and
well
executed
,
and
upon
a
just
Cause
,
and
in
a
regular
manner
,
as
far
as
the
Rector's
own
Misbehaviour
did
not
prevent
it
;
and
therefore
they
prayed
that
the
Judgment
might
be
reversed
?
And
upon
Debate
the
same
was
reversed
accordingly
.
Note
,
That
in
this
Case
there
was
one
Doubt
conceived
before
,
and
another
after
this
hearing
:
The
first
was
,
If
a
Writ
of
Error
lay
in
Parliament
immediately
upon
a
Judgment
in
the
King's
Bench
,
without
first
resorting
to
the
Exchequer
Chamber
;
but
upon
perusing
the
Statute
which
erects
that
Court
for
Examination
of
Errors
,
it
appeared
plainly
that
that
Act
only
gives
the
Election
to
the
Party
aggrieved
to
go
thither
;
that
it
did
not
take
away
the
old
Common
Law
method
of
Relief
in
Parliament
,
and
so
hath
the
Practise
been
;
but
upon
Judgments
in
the
Exchequer
Court
,
the
Writ
of
Error
must
first
be
brought
before
the
Lord
Chancellor
,
and
cannot
come
per
saltum
into
Parliament
,
because
the
Statute
in
that
case
expresly
ordains
,
That
Errors
in
the
Court
of
Exchequer
shall
be
examined
there
;
and
so
held
in
the
Case
of
the
Earl
of
Macclesfield
and
Grosvenor
.
The
other
Doubt
was
raised
by
a
Motion
in
B.
R.
for
the
Court
to
give
a
new
Judgment
upon
the
Reversal
above
;
and
insisted
on
,
that
it
ought
so
to
be
,
as
was
done
in
the
Case
of
Faldo
and
Ridge
,
Yelv.
74.
entred
Trin.
2
Jac.
1.
Rot.
267.
Trespass
and
Special
Plea
,
and
Judgment
in
B.
R.
for
the
Defendant
;
and
upon
Writ
of
Error
in
the
Exchequer
Chamber
,
the
Judgment
was
Reversed
;
and
upon
the
Record
returned
into
the
King's
Bench
,
they
gave
Judgment
that
the
Plaintiff
should
recover
contrary
to
the
first
Judgment
:
for
otherwise
they
said
,
the
Law
would
prove
defective
;
and
a
Precedent
was
shewn
in
Winchcomb's
Case
,
38
Eliz.
where
the
same
Course
was
taken
;
and
the
like
Rule
was
made
Mich.
1
W.
&
Mar.
upon
the
Reversal
of
the
Judgment
inter
Claxton
vers.
Swift
,
which
is
entred
Mich
,
2
Jac.
2.
B.
R.
Rot.
645.
the
like
between
Sarsfield
vers.
Witherley
.
'T
was
argued
on
the
other
side
,
That
the
Court
which
reverses
the
Judgment
ought
to
give
the
new
Judgment
,
such
as
ought
to
have
been
given
at
first
,
that
in
the
Exchequer
Chamber
it
may
be
otherwise
,
because
they
have
only
power
to
affirm
or
reverse
;
for
yet
in
the
Case
of
King
and
Seutin
,
the
Exchequer
Chamber
gave
a
new
Judgment
,
tho'
they
cannot
inquire
of
Damages
:
and
that
is
a
kind
of
Execution
which
must
be
in
B.R.
In
Omulkery's
Case
,
1
Cro.
512.
and
2
Cro.
534.
the
Court
here
sends
a
Mandatory
Writ
to
command
them
in
Ireland
to
do
Execution
there
,
St.
John
vers.
Cummin
,
Yelv.
118
,
119.
4
Inst.
72.
If
Writ
be
abated
in
C.
B.
and
Error
brought
in
B.
R.
and
the
Judgment
be
reversed
,
shall
proceed
in
B.
R.
and
1
Rolls
774.
to
the
same
effect
,
Green
vers.
Cole
.
2
Saund.
256.
The
Judges
Commissioners
gave
the
new
Judgment
.
'T
is
true
,
in
Dyer
343.
the
opinion
was
that
he
was
only
restored
to
his
Action
,
and
then
Writs
of
Error
were
not
so
frequent
.
The
Judgment
may
be
erroneous
for
the
Defendant
,
and
yet
no
reason
to
give
a
Judgment
for
the
Plaintiff
,
as
in
Slocomb's
Case
,
1
Cro.
442.
the
Court
gave
a
new
Judgment
for
the
Defendant
;
therefore
it
properly
belongs
to
the
Court
,
which
doth
examine
the
Error
,
to
give
the
new
Judgment
;
the
Record
is
removed
,
as
Fitzh
.
Nat.
Brev.
18
,
19.
on
false
Judgment
in
ancient
Demesne
;
v.
38
Hen.
6.30
.
and
Griffin's
Case
in
Error
on
a
quod
ei
deforceat
,
in
2
Saunders
29
,
30.
new
Judgment
given
here
.
In
the
Case
of
Robinson
and
Wolley
in
3
Keeble
821.
Ejectment
,
Special
Verdict
,
Judgment
reversed
in
the
Exchequer
Chamber
,
and
they
could
never
get
Judgment
here
,
the
Court
of
Exchequer
Chamber
not
having
given
it
:
and
in
the
principal
Case
,
after
several
Motions
in
the
Court
of
King's
Bench
,
the
Remittitur
not
being
entred
there
,
a
Motion
was
made
in
Parliament
upon
this
Matter
,
and
a
new
Judgment
was
added
to
the
Reversal
,
that
the
Plaintiff
should
recover
,
&c.
Dr.
William
Oldis
Plaintiff
,
Versus
Charles
Donmille
Defendant
.
WRit
of
Error
to
Reverse
a
Judgment
in
the
Court
of
Exchequer
,
affirmed
upon
a
Writ
of
Error
before
the
Lord
Chancellor
,
&c.
The
Case
upon
the
Record
was
thus
;
Donmille
declares
in
the
Exchequer
in
placito
transgr'
&
contempt'
,
&c.
for
a
Prosecution
contra
regiam
prohibit
'
,
and
sets
forth
Magna
Charta
that
nullus
liber
homo
,
&c.
that
the
Plaintiff
is
a
Freeman
of
this
Kingdom
,
and
ought
to
enjoy
the
free
Customs
thereof
,
&c.
that
the
Defendant
not
being
ignorant
of
the
Premisses
,
but
designing
to
vex
and
aggrieve
the
Plaintiff
,
did
in
Curia
militari
Henrici
Ducis
Norfolk
'
coram
ipso
Henrico
Com'
Mareschal
'
Exhibit
certain
Articles
against
the
Plaintiff
,
&c.
that
Sir
Henry
St.
George
Clarencieux
King
at
Arms
,
was
,
and
is
King
at
Arms
for
the
Southern
,
Eastern
,
and
Western
Parts
of
the
Kingdom
,
viz.
from
the
River
of
Trent
versus
Austrum
,
and
that
the
Conusance
,
Correction
,
and
Disposition
of
Arms
,
and
Coats
of
Arms
,
and
ordering
of
Funeral
Pomps
time
out
of
mind
,
did
belong
to
him
within
that
Province
;
and
that
the
Plaintiff
having
notice
thereof
,
did
,
without
any
Licence
in
that
behalf
had
and
obtained
,
paint
,
and
cause
to
be
painted
,
Arms
and
Escutcheons
,
and
caused
them
to
be
fixed
to
Herses
,
that
he
provided
and
lent
Velvet
Palls
for
Funerals
;
that
he
painted
divers
Arms
for
one
Berkstead
,
who
had
no
right
to
their
use
at
the
Funeral
,
and
did
lend
a
Pall
for
that
Funeral
,
and
paint
Arms
for
Elizabeth
Godfrey
,
and
marshalled
the
Funeral
,
and
the
like
for
Sprignall
:
and
that
he
had
publickly
hanging
out
at
his
Balcony
Escutcheons
painted
,
and
Coaches
and
Herses
,
and
other
Publick
Processions
of
Funerals
,
to
entice
People
to
come
to
his
House
and
Shop
for
Arms
,
&c.
That
the
Defendant
compelled
the
Plaintiff
to
appear
and
answer
the
Premisses
,
&c.
The
Defendant
in
propria
persona
sua
venit
&
dicit
,
That
the
Court
of
the
Constable
and
Marshal
of
England
is
an
ancient
Court
,
time
out
of
mind
,
and
accustomed
to
be
held
before
the
Constable
of
England
,
and
the
Earl
Marshal
of
England
for
the
time
being
,
or
before
the
Constable
only
when
the
Office
of
Earl
Marshal
is
vacant
;
or
before
the
Earl
Marshal
only
when
the
Office
of
Constable
is
vacant
;
which
Court
hath
,
time
out
of
mind
,
had
Conusance
of
all
Pleas
and
Causes
concerning
Arms
,
Escutcheons
,
Genealogies
,
and
Funerals
within
this
Realm
,
and
that
no
other
Person
hath
ever
intermeddled
in
those
Pleas
or
Affairs
,
nor
had
or
claimed
Jurisdiction
thereof
;
and
that
the
Suit
complained
of
by
the
Plaintiff
was
prosecuted
in
the
said
ancient
Court
of
and
for
Causes
concerning
Arms
,
Escutcheons
,
and
Funerals
:
That
by
the
13
Rich.
2.
't
was
enacted
,
that
if
any
Person
should
complain
of
any
Plea
begun
before
the
Constable
and
Marshal
,
which
might
be
tried
by
the
Common
Law
,
he
should
have
a
Privy
Seal
without
difficulty
to
be
directed
to
the
Constable
and
Marshal
to
Supersede
that
Plea
,
till
discussed
by
the
King's
Counsel
,
if
it
belongs
to
that
Court
or
to
the
Common
Law
,
prout
per
Statut'
ill'
apparet
,
and
that
the
said
Court
,
time
out
of
mind
,
hath
been
tant'
honoris
&
celsitudinis
,
that
it
was
never
prohibited
from
holding
any
Pleas
in
the
same
Court
aliter
vel
alio
modo
quam
juxta
formam
Statut'
praed'
Et
hoc
parat'
est
verificare
unde
non
intendit
quod
Curia
hic
placitum
praed'
ulterius
cognoscere
velit
aut
debeat
,
&c.
The
Plaintiff
demurs
,
and
the
Defendant
joyns
.
From
the
Exchequer
Court
this
was
adjourned
propter
difficultatem
into
the
Exchequer
Chamber
,
and
afterwards
by
advice
of
the
Judges
there
,
the
Court
gave
Judgment
for
the
Plaintiff
,
which
was
affirmed
by
the
Chancellor
and
Treasurer
,
&c.
And
now
it
was
argued
on
the
behalf
of
the
Plaintiff
in
the
Writ
of
Error
,
that
this
Judgment
was
erroneous
,
and
fit
to
be
reversed
.
And
first
to
maintain
the
Court
as
set
forth
,
't
was
insisted
on
1.
That
when
there
was
a
Constable
and
Marshal
,
the
Marshal
had
equal
Power
of
Judicature
with
the
Constable
,
as
each
Judge
hath
in
other
Courts
.
2.
That
the
Constable
had
in
that
Court
power
of
Judicature
alone
,
when
there
was
no
Marshal
.
And
3.
That
the
Marshal
had
the
like
,
when
there
was
no
Constable
.
That
they
had
both
equal
power
of
Judicature
,
appeared
by
all
their
Proceedings
;
by
their
Libels
or
Bills
,
in
the
Case
of
John
Keightley
Esq
;
against
Stephen
Scroop
:
The
Libel
is
,
In
the
Name
of
God
,
Amen
.
Before
you
my
Lords
the
Constable
and
Marshal
of
England
in
your
Court
of
Chivalry
,
and
prays
that
the
said
Stephen
,
by
their
Sentence
definitive
,
may
be
punisht
,
1
pars
Pat.
2
Hen.
4.
m.
7.
And
the
same
Stephen
libelled
against
Keightley
to
the
thrice
Honourable
Lords
the
Constable
and
Marshal
of
England
.
So
the
Libels
were
directed
to
both
,
and
both
sate
judicially
.
The
same
appears
by
the
Sentence
or
Judgment
given
in
that
Court
:
Bulmer
libelled
against
Bertram
Vsau
coram
Constabulario
&
Mareschallo
,
qui
duellum
inter
partes
allocaverunt
&
assignaverunt
locum
&
tempus
,
Rot.
Vascor
'
9
H.
4.
m.
14.
It
doth
likewise
appear
to
be
so
by
the
Appeals
from
their
Judgments
to
the
King
;
they
are
both
sent
to
,
to
return
the
Rolls
of
their
Judgments
,
Rot.
Claus.
20
Edw.
1.
m.
4.
In
the
Appeal
brought
by
Sir
Robert
Grovesnor
against
Richard
Scroop
,
't
is
upon
the
Sentence
given
by
the
Constable
and
Marshal
in
the
Suit
before
them
concerning
a
Coat
of
Arms
,
Rot.
Claus.
12
Rich.
2.
m.
4.
Appeal
by
Bond
vers.
Singleton
,
't
is
in
a
Cause
of
Arms
in
our
Court
before
our
Constable
and
Marshal
,
wherein
Sentence
was
given
by
them
,
1
pars
Pat.
17
Rich.
2.
m.
12.
Thus
it
appears
by
a
Commission
for
the
Execution
of
the
Office
of
Constable
of
England
,
Committimus
vobis
officium
hujusmodi
Constabularii
ad
querelam
Thome
Moor
in
hac
parte
una
cum
Edmundo
de
Mortimore
Mareschallo
Anglie
audiendum
;
secunda
pars
Patent
'
48
Edw.
3.
m.
20.
in
dorso
.
As
also
by
a
Claim
at
the
Coronation
of
H.
5.
before
Beauchamp
Earl
of
Warwick
then
Lord
Steward
.
John
Mowbray
Earl
Marshal
,
Son
to
the
then
Duke
of
Norfolk
,
claimed
under
a
Grant
in
20th
of
Rich.
2.
of
the
Office
of
Earl
Marshal
of
England
,
to
hold
Court
with
the
Constable
,
and
to
hold
Pleas
before
them
:
and
Copies
of
these
Precedents
were
said
to
have
been
ready
in
Court
.
Further
,
to
prove
the
joynt
Authority
,
were
cited
several
of
our
Old
Books
,
48
Edw.
3.
fol.
3.
in
a
Case
of
Debt
upon
an
Indenture
by
which
P.
was
retained
by
the
Defendant
,
with
two
Squires
of
Arms
for
the
War
in
France
:
Belknapp
said
,
of
such
Matter
this
Court
cannot
have
conusance
,
but
't
is
triable
before
the
Constable
and
Marshal
.
In
the
Case
of
Pountney
and
Bourney
13
Hen.
4.4
.
the
Court
of
King's
Bench
call
it
the
Court
of
the
Constable
and
Marshal
:
And
in
37
Hen.
6.3
.
upon
another
occasion
,
Prisot
said
,
this
Matter
belongs
to
the
Constable
and
Marshal
:
And
Coke
4
Inst.
123.
says
that
they
are
both
Judges
of
the
Court
:
and
that
the
Constable
sometimes
gave
Sentence
,
is
no
Argument
that
the
Marshal
was
no
Judge
with
him
;
it
only
proves
him
the
Chief
,
who
in
most
Courts
doth
usually
give
the
Rule
:
Nor
is
the
Earl
Marshal's
receiving
Writs
from
the
Constable
to
execute
his
Commands
,
any
Argument
that
he
sits
there
only
as
a
Ministerial
Officer
,
and
not
as
a
Judge
;
for
he
may
be
both
;
as
in
many
Corporations
,
Mayors
are
Judges
of
the
Court
,
and
yet
have
the
Custody
of
their
Goals
too
,
and
so
have
the
Sheriffs
of
London
their
Compters
,
tho'
they
strictly
are
Judges
of
their
several
Courts
.
2.
During
the
Vacancy
of
the
Earl
Marshal's
Office
,
the
Constable
alone
had
the
Judicature
;
as
in
11
Hen.
7.
on
Holy-rood-day
,
the
Earl
of
Darby
being
then
Constable
of
England
,
sate
and
gave
Judgment
alone
in
a
Cause
between
Sir
Thomas
Ashton
and
Sir
Piers
Leigh
upon
a
Coat
of
Arms
:
but
this
needs
no
Proof
,
since
't
is
contended
on
the
other
side
,
that
the
Court
doth
belong
only
to
the
Constable
.
3.
'T
was
argued
,
that
the
Earl
Marshal
hath
set
alone
and
given
Judgment
,
and
to
prove
that
,
it
was
said
,
this
Court
was
held
when
there
was
no
Constable
,
before
Thomas
Howard
,
Duke
of
Norfolk
,
Lord
High
Treasurer
and
Earl
Marshal
of
England
,
who
Died
16
Hen.
VIII
.
and
next
after
him
,
before
Charles
Brandon
,
Duke
of
Suffolk
,
then
Earl
Marshal
,
who
Died
37
Hen.
VIII
.
after
him
,
the
Court
was
held
and
Sentences
given
by
Thomas
Howard
,
Duke
of
Norfolk
,
who
Died
in
1512.
and
after
him
,
in
the
30
Eliz.
the
Earl
of
Essex
sat
as
Earl
Marshal
,
and
heard
and
determined
Causes
judicially
,
and
the
chief
Judge
sat
then
as
Assistant
with
him
in
Court
,
and
then
after
the
Death
of
the
Earl
of
Essex
,
it
was
in
Commission
to
my
Lord
Treasurer
Burleigh
,
and
others
,
and
then
the
great
Oase
of
Sir
F.
Mitchell
,
was
heard
and
determined
,
at
which
,
several
Judges
assisted
,
and
the
Sentence
of
degradation
was
executed
upon
him
,
26.
April
,
1621.
and
then
was
Cited
the
Case
of
Pool
and
Redhead
12
Jac.
1.1
Roll's
Rep.
87.
where
't
was
held
,
that
the
proper
remedy
for
Fees
of
Knighthood
was
to
sue
to
the
Earl
Marshal
;
and
Coke
says
in
the
same
Case
,
the
Common-Law
does
not
give
remedy
for
precedency
,
but
it
belongs
to
the
Earl
Marshal
:
And
since
that
in
Parker's
Case
,
which
was
20
Car.
II.
Syd
.
353.
the
Earl
Marshal
was
agreed
to
have
the
absolute
determination
of
matters
of
Honour
in
the
Court
of
Chivalry
,
as
much
as
the
Chancellor
hath
in
matters
of
Equity
:
And
the
Error
on
the
other
side
,
was
occasioned
by
not
distinguishing
between
the
Ancient
Jurisdiction
of
this
great
Court
at
the
Common-Law
,
and
the
Jurisdiction
given
to
the
Constable
and
Marshal
under
those
names
by
Statute
:
for
the
latter
cannot
be
executed
by
one
alone
;
and
that
distinction
answers
the
Authority
in
1
Inst.
74.
which
grounded
the
mistake
,
that
there
is
no
Court
of
Chivalry
,
because
there
's
no
Constable
,
whereas
,
the
reason
why
in
Sir
Francis
Drake's
Case
,
the
not
constituting
of
a
Constable
silenced
the
Appeal
,
was
from
the
1
Hen.
IV.
Cap.
14.
which
orders
all
Appeals
of
Murder
committed
beyond
Sea
to
be
before
the
Constable
and
Marshal
by
name
:
But
the
Ancient
Jurisdiction
of
this
Court
by
prescription
,
wherein
both
the
Constable
and
Marshal
were
Judges
severally
or
together
,
and
which
each
of
them
did
and
could
hold
alone
,
remains
still
as
much
in
the
Earl
Marshal
alone
,
as
it
ever
was
in
him
and
the
Constable
.
Then
it
was
argued
that
no
Prohibition
lay
to
this
Court
,
because
none
had
ever
been
granted
,
and
yet
greater
occasions
then
now
can
be
pretended
,
by
reason
of
the
large
Jurisdiction
,
which
this
Court
did
in
Ancient
time
exercise
:
many
Petitions
were
frequently
preferred
in
Parliament
,
Complaining
of
the
Incroachments
of
this
Court
in
Edw.
I.
Edw.
III.
Rich.
II.
Hen.
IV.
and
Hen.
VIth's
time
,
as
appears
in
4
Inst.
125.
2
Hen.
IV.
num.
79.
and
99.
1
Roll's
Abridg.
527.
and
yet
no
Prohibition
granted
or
moved
for
;
which
,
according
to
Littleton's
Text
is
a
very
strong
Argument
,
that
it
doth
not
lie
.
The
Statute
of
13
Rich.
II.
2.
is
an
Argument
against
it
,
because
after
several
Complaints
of
the
Incroachments
of
this
Court
,
another
remedy
is
given
,
which
had
been
needless
,
if
this
had
been
legal
:
nay
,
it
shews
the
Opinion
of
the
Parliament
,
that
there
was
no
other
way
of
relief
:
and
soon
after
the
making
of
this
Statute
,
in
the
same
Reign
two
Privy
Seals
were
sued
upon
it
:
in
the
Case
of
Poultney
and
Bourney
,
13
Hen.
IV.
4.
5.
Besides
,
this
might
be
grounded
on
the
Antiquity
and
greatness
of
this
Court
:
for
as
to
the
subject
matter
of
it
,
't
is
by
Prescription
a
Court
for
determining
matters
of
Honour
,
to
preserve
the
distinction
of
degrees
and
quality
,
of
which
no
other
Courts
have
Jurisdiction
;
and
the
right
and
property
in
Honours
and
Arms
is
as
necessary
to
be
preserved
in
a
Civil
Government
,
as
that
in
Lands
or
Goods
.
Then
't
was
urged
that
this
Court
hath
Jurisdiction
even
of
Capital
Offences
,
its
extent
is
large
,
't
is
throughout
the
Realm
,
even
in
Counties
Palatine
,
even
beyond
the
Seas
;
its
manner
of
proceeding
is
different
,
in
a
Summary
way
by
Petition
,
its
trial
of
Fact
may
be
by
Duel
as
is
4
Inst.
125.
though
the
Statutes
of
Hen.
VIII
.
impower
Commissions
for
trial
of
Treasons
Committed
beyond
the
Seas
,
yet
this
Court
doth
and
may
still
take
Conusance
of
such
Causes
,
4
Inst.
124.
Its
Sentences
are
only
reversable
by
and
upon
Appeal
to
the
King
,
no
Writ
of
Error
or
false
Judgment
lies
upon
any
of
them
,
which
shews
the
greatness
of
the
Court
,
and
the
difference
of
its
Jurisdiction
from
other
Courts
;
which
may
be
some
of
thereasons
,
why
no
Prohibition
was
ever
granted
to
it
,
and
why
the
Parliament
of
Rich.
II.
gave
the
Remedy
of
a
Privy
Seal
:
wherefore
it
was
prayed
that
the
Judgment
should
be
Reversed
.
On
the
other
side
,
it
was
argued
by
the
Council
,
in
behalf
of
the
Plaintiff
in
the
Original
Action
,
that
this
Judgment
ought
to
be
affirmed
,
and
it
was
after
this
manner
,
there
seem
three
Queries
in
the
Case
;
1.
If
any
Prohibition
lies
to
that
Court
;
2.
If
any
Cause
here
for
a
Prohibition
;
and
,
3.
If
there
be
any
such
Court
as
that
before
the
Earl
Marshal
;
but
another
doubt
was
raised
,
whether
any
of
these
Questions
could
be
such
upon
this
plea
,
which
is
concluded
to
the
Jurisdiction
;
for
that
seems
to
make
only
one
doubt
;
whether
the
Court
of
Exchequer
could
hold
Plea
of
an
Action
for
proceeding
contrary
to
a
Prohibition
already
granted
;
but
this
was
waved
,
and
then
it
was
argued
,
1.
That
a
Prohibition
doth
lie
to
this
Court
of
Chivalry
,
in
case
it
exceeds
the
Jurisdiction
proper
to
it
;
and
it
was
agreed
,
that
the
Office
of
Constable
is
Ancient
,
and
by
Cambden
is
held
to
have
been
in
Ure
in
this
Kingdom
,
in
the
Saxon's
time
,
though
the
Office
of
Marshal
is
but
of
a
puisne
date
:
but
however
Great
and
Noble
the
Office
is
,
however
large
and
Extensive
the
Jurisdiction
is
,
yet
't
is
but
limitted
,
and
Coke
in
4
Inst.
123.
says
that
't
is
declared
so
,
by
the
Statute
of
Rich.
II.
where
't
is
said
,
that
they
incroached
in
great
prejudice
of
the
King's
Courts
,
and
to
the
great
grievance
and
oppression
of
his
people
,
and
that
their
proper
Business
is
to
have
conusance
of
Contracts
and
Deeds
of
Arms
,
and
of
War
out
of
the
Realm
,
which
cannot
be
determined
or
discussed
by
the
Common-Law
,
which
other
Constables
have
heretofore
duly
and
reasonably
used
in
their
time
;
now
by
this
Act
't
is
plain
,
what
the
Jurisdiction
is
:
Contracts
and
Deeds
of
Arms
,
and
War
out
of
the
Realm
,
are
the
subject
matter
of
it
;
and
by
Coke
't
is
called
,
curia
militaris
,
or
the
Fountain
of
Marshal
Law
:
which
shews
it
a
Court
,
that
hath
its
boundaries
,
a
Court
that
may
incroach
,
nay
,
which
hath
incroach'd
in
diverse
instances
belonging
to
the
Common-Law
:
And
that
't
is
a
Court
that
ought
to
meddle
with
nothing
that
may
be
Determined
in
Westminster-Hall
:
then
there
must
be
some
way
of
restraining
this
excess
and
these
incroachments
,
and
if
the
Statute
of
Rich.
II.
had
not
been
made
,
it
must
be
agreed
that
a
Prohibition
would
have
lain
,
for
else
there
had
been
no
remedy
,
which
is
absurd
to
affirm
.
'T
is
no
Objection
that
Prohibitions
are
only
grantable
to
Inferiour
Courts
,
and
that
this
is
one
of
the
greatest
Courts
in
the
Realm
,
for
if
a
Court
Marshal
intermeddle
with
a
Common-Law
matter
,
ea
ratione
,
it
becomes
inferior
and
may
be
controwled
:
There
needs
no
contest
about
the
Superiority
of
Courts
in
this
matter
,
't
is
the
same
here
,
as
among
private
Persons
,
he
that
offends
becomes
inferior
,
and
subject
to
the
Censure
of
his
equal
by
offending
;
though
that
Court
should
be
reckoned
so
noble
and
great
as
hath
been
represented
,
yet
't
is
only
so
,
while
it
keeps
within
its
Jurisdiction
;
Prohibitions
are
grantable
to
almost
all
sort
of
Courts
,
which
differ
from
the
Common-Law
in
their
proceeding
,
to
Courts
Christian
,
to
the
Admiralty
,
nay
,
to
the
Delegates
,
and
even
to
the
Steward
and
Marshal
,
upon
the
Statute
of
Articuli
super
Chartas
,
Cap.
3.
That
they
shall
not
hold
Plea
of
Freehold
or
of
Trespass
,
Fits
'
N.B.
241
,
242.
is
an
express
Writ
of
Prohibition
,
though
the
Statute
gave
no
such
Writ
,
but
only
did
restrain
the
Jurisdiction
of
the
Court
;
which
in
truth
,
is
the
Case
in
Question
,
antecedent
to
the
Statute
pleaded
.
No
Argument
can
be
raised
from
the
subject
matter
of
the
Jurisdiction
of
this
Court
,
that
't
is
different
from
the
Common-Law
,
for
so
is
the
Admiralty
and
the
Prerogative
Courts
,
nor
is
it
any
Objection
that
upon
any
Grievance
in
this
Court
,
the
Appeal
must
be
to
the
King
,
for
that
holds
in
the
other
Courts
with
equal
reason
:
Nay
,
Prohibitions
lie
from
Westminster-Hall
,
to
hinder
proceeding
in
Causes
,
which
the
Courts
that
grant
such
Prohibitions
,
cannot
hold
Plea
of
;
as
to
the
Ecclesiastical
Court
which
grants
probate
of
a
Will
made
within
a
Mannor
,
to
the
Lord
whereof
such
probate
belongs
,
5
Rep.
73.
to
the
Marches
of
Wales
,
if
hold
Plea
of
what
belongs
to
Court
Christian
,
2
Roll's
Abridg.
313.
are
several
Cases
to
this
purpose
:
there
were
also
Cited
,
1
Roll's
Rep.
42.
2
Roll's
Abridg.
317.
Sid.
189.
1
Brownl.
143
,
144.
and
Herne
543.
't
was
further
urged
,
that
there
neither
was
nor
could
be
any
reason
assigned
,
why
a
Prohibition
should
not
be
grantable
to
the
Court
of
Chancery
,
when
by
English
Bill
it
meddles
with
the
Common-Law
,
in
other
manner
than
its
Ancient
and
proper
Jurisdiction
doth
allow
,
and
several
Authorities
were
Cited
to
countenance
that
Assertion
.
Then
was
considered
the
reason
of
Prohibitions
in
general
,
that
they
were
to
preserve
the
right
of
the
King's
Crown
and
Courts
,
and
the
ease
and
quiet
of
the
Subject
,
that
't
was
the
Wisdom
and
Policy
of
the
Law
,
to
suppose
both
best
preserved
,
when
every
thing
runs
in
its
right
Channel
,
according
to
the
Original
Jurisdiction
of
every
Court
,
that
by
the
same
reason
one
Court
might
be
allowed
to
incroach
,
another
might
,
which
could
produce
nothing
but
confusion
and
disorder
in
the
Administration
of
Justice
;
that
in
all
other
Writs
of
Prohibition
,
the
suggestion
is
and
with
Truth
,
in
prejudicium
corone
Regis
&
Gravamen
partis
,
and
both
these
are
declared
to
be
the
consequent
of
this
Courts
excess
or
incroachment
of
Jurisdiction
,
even
by
their
own
Statutes
:
and
,
when
the
reason
is
the
same
,
the
remedy
ought
to
be
so
:
But
,
it
hath
been
pretended
,
That
the
Statute
appoints
a
Privy
Seal
for
to
supersede
,
&c.
and
therefore
no
Prohibition
;
to
this
it
was
answered
,
That
this
Act
doth
not
take
away
the
force
of
the
8
Rich.
II.
mentio
ned
in
4
Inst.
125.
which
restrains
the
Constable
and
Marshal
from
medling
with
any
Plea
,
which
concerns
the
Common
Law
,
and
if
it
had
a
limitted
Jurisdiction
by
the
Common-Law
,
or
by
that
Statute
,
the
subsequent
Statute
which
gave
a
further
Remedy
for
to
restrain
them
,
did
not
take
away
that
which
they
had
before
;
and
every
Body
must
agree
,
that
where
an
Act
of
Parliament
restrains
a
Jurisdiction
,
such
Act
warrants
a
Prohibition
,
in
case
that
restraint
be
broken
or
exceeded
;
't
is
so
in
case
of
a
limited
Power
at
the
Common
Law
,
but
much
more
so
upon
a
Statute
.
Besides
,
the
latter
Statute
which
gives
a
Privy
Seal
,
doth
not
Repeal
or
alter
the
Law
then
in
being
,
't
is
an
Affirmative
Law
,
and
that
seldom
or
never
works
any
change
or
alteration
in
what
was
before
,
any
otherwise
then
by
Addition
or
Confirmation
;
and
in
truth
this
is
only
a
further
remedy
,
and
is
far
from
declaring
a
Prohibition
not
to
lie
:
the
meaning
might
be
to
give
a
Privy
Seal
immediately
,
even
in
vacation
time
;
the
preamble
complains
so
much
of
the
Grievances
,
that
it
cannot
be
supposed
to
Design
any
thing
in
favour
of
them
,
or
to
prevent
the
restraint
.
Suppose
between
the
8
and
the
15
Rich.
II.
an
excess
of
Jurisdiction
had
been
usurped
as
in
this
Case
,
will
any
Man
say
,
that
a
Prohibition
would
not
then
have
lain
;
and
if
it
would
,
can
any
Man
say
,
that
the
Statute
pleaded
,
doth
take
it
away
,
or
Prohibit
such
Writ
of
Prohibition
:
And
the
11
Hen.
IV.
24.
ordains
that
all
the
Statutes
concerning
the
Court
of
Constable
and
Marshal
,
shall
be
duly
observed
;
and
if
so
,
the
8
Rich.
II.
as
well
as
the
15
Rich.
II.
are
within
that
ordinance
;
and
if
so
,
a
Prohibition
lies
as
well
as
a
Privy
Seal
;
and
both
are
little
enough
to
keep
that
Court
within
its
due
bounds
and
limits
.
2.
It
was
argued
,
That
the
proceeding
upon
these
Articles
,
was
an
intermedling
with
a
subject
matter
properly
determinable
at
Common-Law
;
here
's
no
contract
or
deed
of
Arms
,
no
Mis-behaviour
in
War
,
nothing
of
that
nature
,
which
their
own
Statute
says
belongs
to
them
:
Rushworth's
II.
Vol.
1054.
he
frequented
the
Court
for
four
years
together
,
he
observed
no
Cases
there
but
for
Words
,
and
one
or
two
as
Delaware's
Case
,
about
abusing
an
Honourable
Family
,
by
assuming
to
be
a
branch
thereof
;
here
's
no
such
thing
,
but
express
Articles
for
exercising
of
a
lawful
Trade
;
't
is
not
causa
armorum
,
it
doth
neither
concern
Warlike
matters
,
nor
Honour
;
a
Funeral
Ceremony
can
never
be
within
their
Power
;
this
is
a
plain
Accusation
for
a
wrong
to
one
of
their
Officers
;
the
Articles
charge
,
that
Sir
Henry
S.
George
by
his
Office
within
his
Province
,
hath
the
ordering
of
these
matters
,
and
the
party
hath
medled
therein
without
his
License
;
he
says
,
't
is
lawful
,
and
the
exercise
of
a
lawful
employment
;
they
say
,
't
is
otherwise
,
because
it
belongs
to
another
Man's
Office
;
then
't
was
admitted
by
the
Council
for
the
present
to
be
so
,
that
Sir
Henry
was
an
Officer
by
Letters
Patents
under
the
Great
Seal
of
England
,
(
which
by
the
way
,
makes
the
Office
and
rights
of
it
to
be
of
Common-Law
Conusance
)
and
the
Patent
is
set
forth
at
large
in
Prinne
,
on
4
Inst.
64
,
65.
and
that
the
King
at
Arms
hath
such
a
right
,
yet
if
any
Man
intermeddles
or
incroaches
upon
that
Office
;
't
is
not
a
breach
of
the
rules
of
Honour
,
and
not
relating
to
Arms
,
but
a
plain
injury
at
Common-Law
,
and
an
Action
lies
for
it
,
as
it
doth
for
the
disturbance
of
any
other
Office
or
Franchise
.
In
4
Inst.
126.
't
is
said
,
that
they
do
upon
request
Marshal
Funerals
,
but
supposing
they
alone
ought
to
do
it
,
then
an
Action
lies
:
This
is
merely
a
question
,
whether
the
Letters
Patents
do
carry
such
a
sole
priviledge
,
suppose
nul
tiel
record
be
Pleaded
to
them
,
when
Pleaded
or
Inrolled
,
and
without
producing
them
,
suppose
non
concessit
Pleaded
to
them
when
produced
,
how
shall
these
issues
be
tried
:
Suppose
they
awarded
a
satisfaction
to
be
made
to
Sir
H.
S.
by
the
gift
of
a
Summ
of
Money
;
and
he
should
afterwards
bring
an
Action
at
Law
for
the
same
Cause
,
will
the
proceeding
in
the
Court
of
the
Earl
Marshal
be
a
barr
:
the
Fact
alledged
in
these
Articles
comes
within
none
of
those
particulars
supposed
to
be
belonging
to
this
Court
,
in
1
Inst.
391.
It
matters
not
,
whether
these
were
publick
Funerals
as
was
questioned
in
Parker's
Case
,
Sid.
352.
and
in
2
Keble
.
316.322
.
but
the
Query
here
is
,
if
this
be
a
point
of
Honour
,
or
whether
it
be
not
about
the
right
of
an
Office
;
and
if
it
be
the
latter
,
they
have
no
Power
to
determine
it
.
The
Heralds
are
Officers
attendant
upon
that
Court
,
but
it
doth
not
follow
,
that
that
Court
can
judge
of
the
nature
or
extent
validity
or
operation
of
their
Letters
Patents
;
no
more
than
the
Court
Christian
can
try
the
right
or
Freehold
of
a
Chancellors
or
Registers
Office
.
The
Earl
Marshal
cannot
License
the
doing
this
in
prejudice
of
the
Heralds
,
or
acquit
the
party
if
does
it
,
for
he
still
stands
liable
at
Law
;
the
Herald
hath
a
Freehold
in
it
,
and
may
bring
his
Action
notwithstanding
.
Then
,
3.
'T
was
argued
,
that
admitting
that
no
Prohibition
did
lie
to
the
Court
of
Honour
,
or
that
there
was
no
cause
for
such
Prohibition
,
yet
it
ought
to
be
granted
to
this
pretended
Court
,
which
is
not
within
their
Statute
.
The
true
Court
is
before
Constable
and
Marshal
,
it
is
a
Court
by
Prescription
,
and
cannot
be
altered
but
by
Act
of
Parliament
:
All
our
Books
which
describe
the
Court
,
mention
it
to
be
before
both
,
4
Inst.
125.
Crompt
.
Jurisdiction
,
82.
1
Inst.
74.
Stamford
.
65.
The
Constable
is
the
Chief
,
and
so
are
the
Old
Books
,
and
37
Hen.
6.20
.
expresly
before
the
Constable
and
Marshal
.
The
Statutes
which
mention
the
Court
,
do
all
take
notice
of
it
,
as
held
before
both
:
the
8
Rich.
2.
and
that
which
they
Plead
,
do
describe
it
so
:
and
the
1
Hen.
4.
Cap.
14.
the
13
Hen.
4.4.5
.
all
Attainders
are
Pleaded
to
be
before
both
.
Cambden
(
who
was
an
Herald
)
in
his
Commentary
de
Etymologio
,
antiquitate
&
officio
Comitis
Mareschalli
Angliae
,
fol.
87.
't
is
published
at
the
end
of
his
Latin
Epistles
,
which
are
in
4to
,
Printed
for
Chiswell
,
1691.
he
endeavours
to
advance
the
Office
of
Earl
Marshal
,
and
searches
for
the
Etymology
,
and
after
all
,
makes
him
but
an
Harbinger
,
and
tells
us
when
the
Title
Mareschallus
Angliae
was
first
used
,
and
how
it
hath
been
enjoyed
,
and
by
whom
,
and
of
what
Families
,
and
afterwards
91.
lessens
his
Character
much
,
and
derives
the
Office
of
Marshal
of
England
from
that
of
Marshal
of
the
Houshold
,
which
he
describes
to
disadvantage
,
the
same
is
likewise
in
Fleta
.
lib.
2.
cap.
5.
But
this
is
observable
,
which
Cambden
says
,
that
the
greatest
increase
of
the
Authority
of
this
Office
hath
been
,
since
there
were
no
Constables
,
for
the
Kings
since
that
time
have
referred
many
things
to
them
,
which
in
former
times
were
proper
for
the
Constable
;
neither
had
the
Marshal
any
precedency
in
respect
of
his
place
,
until
King
Hen.
8.
Anno
31.
by
Parliament
Assigned
him
place
next
to
the
Lord
Constable
and
before
the
Lord
Admiral
:
all
which
,
shews
that
the
Earl
Marshal
never
had
that
Authority
time
out
of
mind
,
to
hold
this
Court
before
himself
alone
,
as
is
pretended
,
during
the
vacancy
of
the
Office
of
Constable
.
In
November
,
1640.
't
was
Voted
by
the
House
of
Commons
,
upon
a
report
from
a
Committee
of
some
of
the
greatest
Members
of
the
House
,
Selden
,
Hollis
,
Maynard
,
Palmer
,
Hide
,
&c.
that
the
Earl
Marshal
can
make
no
Court
without
the
Constable
,
and
that
the
Earl
Marshal's
Court
is
a
grievance
,
Rushworth
2
Vol.
1056.
Nalson's
1
Vol.
778.
Spelman
in
his
Glossary
,
verbo
Mareschallus
,
seems
to
say
,
't
was
officium
primo
Servile
,
and
that
he
was
a
meer
Servant
to
the
Constable
,
and
gives
much
such
another
account
of
it
,
as
Cambden
doth
:
and
pag.
403.
is
an
Abstract
or
rather
Transcript
of
all
that
is
in
the
Red
Book
in
the
Exchequer
about
the
nature
of
this
Office
;
and
there
't
is
said
,
that
if
the
King
be
in
War
,
then
the
Constable
and
Marshal
shall
hold
Pleas
,
and
the
Marshal
shall
have
the
Amerciaments
and
Forefeitures
of
all
those
,
who
do
break
the
Commandments
of
the
Constable
and
Marshal
;
and
then
it
was
further
alledged
,
by
the
Councel
for
the
Defendant
,
in
the
Writ
of
Error
,
that
they
knew
of
no
Statute
,
Record
,
or
Ancient
Book
of
Law
or
History
,
that
ever
mentioned
the
Earl
Marshal
alone
,
as
having
Power
to
hold
a
Court
by
himself
:
So
that
taking
it
as
a
Court
,
held
before
an
incompetent
Judge
,
a
Prohibition
ought
to
go
,
and
the
Party
ought
not
to
be
put
to
his
Action
,
after
he
has
undergone
imprisonment
and
paid
his
Fine
,
since
it
hath
the
semblance
of
a
Court
,
and
pretends
to
act
as
such
;
and
if
it
be
a
Court
before
the
Earl
Marshal
alone
,
in
case
it
exceeds
the
Jurisdiction
proper
to
it
,
a
Prohibition
lies
either
by
force
of
the
Common-Law
,
which
states
the
boundaries
and
limits
of
that
Jurisdiction
,
or
by
force
of
the
Statute
of
8
Rich.
2.
which
is
not
repealed
by
the
subsequent
Law
in
that
Reign
,
and
if
such
Prohibition
do
lie
in
any
Case
,
that
here
was
cause
for
it
,
the
subject
matter
of
the
Articles
being
only
a
wrong
(
if
any
)
to
a
private
Officer
,
who
had
his
proper
remedy
at
the
Common-Law
;
and
therefore
it
was
prayed
that
the
Judgment
should
be
affirmed
,
and
it
was
affirmed
.
Smith
&
Vx'
Versus
Dean
and
Chapter
of
Paul
's
London
,
and
Lewis
Rugle
.
APpeal
from
a
Decree
of
Dismission
made
by
the
Lord
Jeffreys
,
the
Bill
was
to
compel
the
Dean
and
Chapter
,
as
Lord
of
the
Mannor
to
receive
a
Petition
in
nature
of
a
Writ
of
false
Judgment
,
for
Reversing
a
common
recovery
suffered
in
the
Mannor
Court
,
in
1652.
whereby
a
Remainder
in
Tail
,
under
which
,
the
Plaintiff
claimed
was
barred
,
suggesting
several
Errors
in
the
proceeding
therein
:
And
that
the
said
Lord
might
be
commanded
to
examine
the
same
,
and
do
Right
thereupon
.
To
this
Bill
,
the
Defendant
Rugle
demurred
,
and
the
Dean
and
Chapter
by
Answer
,
insisted
,
That
't
was
the
first
Attempt
of
this
kind
,
and
of
dangerous
consequence
,
and
therefore
conceived
it
not
fit
to
proceed
on
the
said
Petition
,
unless
compelled
thereto
by
course
of
Law
:
That
Rugle
being
the
Person
concerned
in
interest
to
contest
the
sufficiency
of
the
Common-recovery
,
they
hoped
the
Court
would
hear
his
defence
,
and
determine
therein
before
any
Judgment
were
given
against
them
,
and
that
they
were
only
Lords
of
the
Mannor
,
and
ready
to
Obey
,
&c.
and
prayed
that
their
rights
might
be
preserved
:
This
demurrer
was
heard
and
ordered
to
stand
.
And
now
it
was
insisted
on
by
the
Council
with
the
Appellant
,
that
this
was
the
only
Remedy
which
they
had
,
that
no
Writ
of
Error
or
false
Judgment
lies
for
Reversing
of
a
recovery
or
Judgment
obtained
in
a
Copyhold
Court
,
that
the
only
method
was
a
Bill
or
Petition
to
the
Lord
,
in
nature
of
a
Writ
of
false
Judgment
,
which
of
common
right
he
ought
to
receive
,
and
to
cause
Errors
and
defects
in
such
recovery
or
Judgment
to
be
examined
,
and
for
this
were
Cited
Moore
68.
Owen
63.
Fits
.
N.
B.
12.
1
Inst.
60.
4
Rep.
30.
is
such
a
Record
mentioned
to
have
been
seen
by
Fenner
,
where
the
Lord
upon
Petition
to
him
had
for
certain
Errors
in
the
proceedings
Reversed
such
Judgment
given
in
his
own
Court
,
1
Roll's
Abridg.
600.
Kitchin
.
80.
1
Roll's
Abridg.
539.
Lanc.
98.
Edward's
Case
,
Hill.
8.
Jac.
1.
by
all
which
,
it
appears
,
that
this
is
an
allowed
and
the
only
remedy
;
Then
it
was
argued
,
That
in
all
Cases
where
any
Party
having
a
Right
to
any
Freehold
Estate
,
is
barred
by
Judgment
,
Recovery
,
or
Fine
,
such
Party
of
common
Right
may
have
a
Writ
of
Error
,
if
the
same
be
in
a
Court
of
Record
;
and
a
Writ
of
false
Judgment
,
if
in
a
Court
Baron
or
County
Court
,
and
reverse
such
Judgment
,
Recovery
,
or
Fine
for
Error
or
Defect
:
and
there
can
be
no
reason
assigned
why
a
Copyholder
(
especially
considering
the
great
quantity
of
Land
of
that
Tenure
in
England
)
should
be
without
remedy
,
when
a
false
Judgment
is
given
;
and
the
rather
,
for
that
in
Real
Actions
(
as
this
was
)
the
Proceedings
in
the
Lord's
Courts
are
according
to
those
in
Westminster-hall
;
and
now
tho'
a
Common
Recovery
be
a
Common
Assurance
,
yet
it
was
never
pretended
that
a
Writ
of
Error
to
Reverse
it
was
refused
upon
that
pretence
;
and
if
the
Lord
of
a
Mannor
deny
to
do
his
Duty
,
the
Chancery
hath
such
a
Superiour
Jurisdiction
as
to
enjoyn
him
thereto
.
'T
is
the
Business
of
Equity
to
see
that
Right
be
done
to
all
Suitors
in
Copyhold
Courts
,
Fitsh
.
Abridg.
Subpena
21.
2
Cro.
368.
2
Bulstr.
336.
1
Rolls
Abridg.
373.
If
an
Erroneous
Judgment
be
given
in
such
Court
of
a
common
Person
's
,
in
an
Action
in
the
Nature
of
a
Formedon
,
a
Bill
may
be
in
Chancery
in
nature
of
a
false
Judgment
to
Reverse
it
;
and
Lanc.
38.
Tanfield
says
that
he
was
of
Counsel
in
the
Case
of
Patteshall
,
and
that
it
was
so
decreed
,
which
is
much
more
then
what
is
here
contended
for
;
and
tho'
Common
Recoveries
are
favoured
,
and
have
been
supported
by
several
Acts
of
Parliament
;
yet
no
Parliament
ever
thought
fit
to
deprive
the
Parties
bound
by
such
Recoveries
,
of
the
benefit
of
a
Writ
of
Error
.
On
the
other
side
,
't
was
urged
in
defence
of
the
Dismission
,
That
the
Person
who
suffered
this
Recovery
had
a
power
over
the
Estate
,
that
she
might
both
by
Law
and
Conscience
,
upon
a
Recovery
,
dispose
of
it
,
as
she
should
think
fit
;
that
she
hath
suffered
a
Recovery
,
and
that
it
was
suffered
according
to
the
custom
of
the
Mannor
,
tho'
not
according
to
the
form
of
those
suffered
in
Westminster-hall
:
That
the
suffering
of
Recoveries
in
any
Court
,
and
the
Methods
of
proceeding
in
them
,
are
rather
notional
then
real
things
;
and
in
the
Common
Law
Courts
they
are
taken
notice
of
,
not
as
Adversary
Suits
,
but
as
Common
Assurances
;
so
that
even
there
,
few
Mistakes
are
deemed
so
great
,
but
what
are
remedied
by
the
Statute
of
Jeofailes
,
or
will
be
amended
by
the
Assistance
of
the
Court
:
And
if
it
be
so
in
the
Courts
at
Westminster
,
where
the
Proceedings
are
more
solemn
,
and
the
Judges
are
Persons
of
Learning
and
Sagacity
,
how
much
rather
ought
this
to
stand
,
which
was
suffered
in
1652.
during
the
Times
of
Disorder
,
and
most
Proceedings
informal
and
in
the
English
Tongue
,
in
such
a
mean
Court
where
are
few
Precedents
to
guide
them
:
where
the
Parties
themselves
are
not
empowered
to
draw
up
their
own
Proceedings
as
here
above
;
but
the
whole
is
left
to
the
Steward
,
who
is
a
Stranger
to
the
Person
concerned
;
and
therefore
't
is
hard
and
unreasonable
,
that
Mens
Purchases
should
be
prejudiced
by
the
Ignorance
,
Unskilfulness
,
or
Dishonesty
of
a
Steward
or
his
Clerks
;
that
there
is
scarce
one
Customary
Recovery
in
England
,
which
is
exactly
agreeable
to
the
Rules
of
the
Common
Law
;
that
the
questioning
of
this
,
may
in
consequence
endanger
multitudes
of
Titles
which
have
been
honestly
purchased
,
especially
since
there
can
be
no
aid
from
the
Statutes
of
Jeofailes
,
for
they
do
not
extend
to
Courts
Baron
.
'T
was
further
urged
,
That
there
was
no
Precedent
to
enforce
Lords
of
Mannors
to
do
as
this
Bill
desired
;
that
the
Lords
of
Mannors
are
the
ultimate
Judges
of
the
Regularity
or
Errours
in
such
Proceedings
;
that
there
's
no
Equity
in
the
Prayer
of
this
Plaintiff
;
that
if
the
Lord
had
received
such
Petition
,
and
were
about
to
proceed
to
the
Reversal
of
such
Recovery
,
Equity
ought
then
to
interpose
and
quiet
the
Possession
under
those
Recoveries
:
That
Chancery
ought
rather
to
supply
a
Defect
in
a
Common
Conveyance
(
if
any
shall
happen
)
and
decree
the
Execution
of
what
each
Party
meant
and
intended
by
it
,
much
rather
,
than
to
assist
the
annulling
of
a
Solemn
Agreement
,
executed
according
to
Usage
,
tho'
not
strictly
conformable
to
the
Rules
of
Law
.
For
which
Reasons
it
was
prayed
that
that
Appeal
might
be
dismissed
,
and
the
Dismission
below
confirmed
,
and
'
was
accordingly
adjudged
so
.
The
Countess
of
Radnor
,
versus
Vandebendy
&
al.
APpeal
from
a
Decree
of
Dismission
in
Chancery
,
the
Case
was
to
this
effect
;
The
Earl
of
Warwick
,
upon
Marriage
of
his
Son
,
settles
part
of
his
Estate
upon
his
Lady
for
a
Jointure
,
and
after
failure
of
Issue
Male
,
limits
a
Term
for
99
years
to
Trustees
to
be
disposed
of
by
the
Earl
,
either
by
Deed
or
Will
:
And
for
want
of
such
Appointment
,
then
in
trust
for
the
next
in
Remainder
,
and
then
limited
the
whole
Estate
in
such
manner
,
as
that
a
third
part
of
a
Moiety
thereof
came
to
the
Lord
Bodmyn
(
the
Appellants
late
Husband
)
in
Tail
general
,
with
the
Reversion
in
Fee
to
the
Earl
and
his
Heirs
.
The
Son
died
without
Issue
,
the
Earl
by
his
Will
appoints
the
Lands
to
his
Countess
for
so
many
years
of
the
Term
as
she
should
live
,
and
to
her
Executors
for
one
year
after
her
Death
,
and
charges
the
Term
with
several
Annuities
,
some
of
which
remain
in
being
.
The
Respondent's
Father
purchased
part
of
these
Lands
from
the
Lord
Bodmyn
after
his
Marriage
,
and
had
the
Term
assigned
to
him
.
The
Lord
Bodmyn
dyes
,
the
Appellant
brings
her
Writ
of
Dower
in
C.
B.
the
Respondent
pleads
the
Term
for
99
years
;
and
she
Exhibits
her
Bill
,
praying
that
she
may
,
after
the
discharge
of
the
Earls
Incumbrances
,
have
the
benefit
of
the
Trust
as
to
a
third
of
the
Profits
of
this
Term
;
and
upon
hearing
the
Cause
,
the
Lord
Chancellor
saw
no
cause
to
give
Relief
,
but
dismissed
her
Bill
.
There
were
many
Particulars
in
the
Case
,
and
many
Proceedings
before
,
both
in
Law
and
Equity
;
but
this
was
the
whole
Case
as
to
the
general
Question
,
Whether
a
Tenant
in
Dower
shall
have
the
benefit
of
the
Trust
of
a
Term
which
is
ordered
to
attend
the
Inheritance
,
against
a
Purchaser
after
the
Marriage
?
The
Lord
Chancellor
Jeffryes
had
been
of
opinion
with
the
Appellant
,
but
the
Cause
coming
to
be
heard
again
,
a
Dismission
was
decreed
,
and
now
it
was
argued
against
the
Decree
on
behalf
of
the
Appellant
,
that
Equity
did
entitle
her
to
the
Thirds
of
this
Term
;
that
a
Tenant
by
the
Curtesie
is
intitled
to
it
,
and
br
the
same
reason
a
Tenant
in
Dower
;
that
the
Term
created
by
the
Settlement
,
was
to
attend
all
the
Estates
limited
by
that
Settlement
,
and
in
Trust
for
such
Persons
as
should
claim
under
it
,
which
the
Appellant
doth
as
well
as
the
Respondents
;
that
it
was
in
consequence
to
attend
all
the
particular
Estates
carved
or
derived
from
the
others
;
the
Term
was
never
in
its
creation
designed
for
this
purpose
,
to
prevent
or
protect
against
Dower
;
that
in
the
Case
of
Snell
and
Clay
,
the
Tenant
in
Dower
had
it
in
Chancery
against
the
Heir
at
Law
,
and
that
this
was
the
same
Case
,
a
Purchaser
with
notice
of
that
Incumbrance
of
Dower
,
the
Vendor
being
then
married
;
this
was
an
Estate
of
which
the
Husband
was
full
Owner
,
and
received
the
whole
Profits
;
that
in
proportion
,
't
is
as
much
a
Trust
for
her
,
for
her
Thirds
during
Life
,
as
it
is
a
Trust
for
the
Respondents
for
the
Inheritance
;
she
claims
under
her
Husband
who
had
the
benefit
of
the
whole
Trust
:
If
there
be
a
Mortgage
by
an
Ancecestor
upon
the
whole
Eqinty
will
permit
her
to
redeem
,
paying
her
proportion
,
according
to
the
value
of
her
Thirds
for
Life
;
and
the
same
reason
holds
in
this
Case
;
and
there
's
no
Precedent
in
Equity
to
the
contrary
:
And
many
Precedents
in
favour
of
Tenant
in
Dower
were
cited
,
and
much
Reason
well
urged
from
parallel
Cases
,
to
entitle
the
Lady
to
her
proportion
of
the
Trust
of
this
Term.
On
the
other
side
,
'T
was
said
that
Dower
is
an
Interest
or
Right
at
the
Common
Law
only
;
that
no
Title
can
be
maintained
to
have
Dower
,
but
where
the
Common
Law
gives
it
,
and
that
is
only
to
have
the
Thirds
of
that
which
the
Husband
was
seized
of
;
and
if
a
Term
were
in
being
,
no
Feme
was
ever
let
in
but
after
the
determination
of
that
Term
;
that
this
is
the
first
pretence
set
up
for
a
Dower
in
Equity
;
the
Right
is
only
to
the
Thirds
of
the
Rent
reserved
upon
any
Term
;
and
't
is
a
new
thing
to
affirm
,
that
there
shall
be
one
sort
of
Dower
at
Law
,
and
another
in
Chancery
;
that
't
is
,
and
always
hath
been
,
the
common
received
Opinion
of
Westminster-hall
,
and
of
all
Conveyancers
,
that
a
Term
or
Statute
prevents
Dower
,
that
if
a
Purchaser
can
procure
it
,
the
same
becomes
his
Defence
;
that
this
is
what
the
Wisdom
of
our
Forefathers
thought
fit
to
use
,
and
tho'
some
Mens
reasoning
may
render
it
in
appearance
as
absurd
,
yet
the
consequence
of
an
alteration
will
be
much
more
dangerous
than
the
continuance
of
the
old
Rules
;
that
tho'
this
Lady's
Case
be
unfortunate
,
yet
the
multitude
of
Purchasors
,
who
have
bought
upon
full
consideration
,
and
have
been
advised
,
and
still
conceive
themselves
safe
under
this
Law
,
will
be
more
unfortunate
,
if
the
Law
be
broken
.
Then
'
was
argued
,
That
there
could
be
no
Equity
in
this
Case
,
for
it
must
be
not
only
from
the
Party
Appellant
,
but
also
against
the
Respondent
,
and
that
't
is
not
,
because
he
bought
the
whole
:
Her
Portion
,
her
Quality
,
and
her
being
a
Wife
,
create
no
Equity
as
to
the
Purchaser
,
't
would
perhaps
be
prevalent
against
an
Heir
,
but
not
against
him
:
here
's
no
Fraud
or
ill
Practise
,
&c.
Then
if
the
nature
of
the
thing
be
considered
,
the
Demand
is
of
a
Right
,
not
arising
by
Agreement
of
Parties
,
but
by
Operation
of
Law
;
if
the
former
,
Chancery
might
perhaps
construe
and
enlarge
it
,
so
as
to
fulfil
the
utmost
Intention
:
but
here
,
her
title
is
the
Marriage
,
the
Seisin
,
and
Death
of
the
Husband
:
And
there
never
was
a
time
when
,
if
her
Lord
had
died
,
she
could
have
had
immediate
Dower
,
for
even
the
Term
had
been
pleadable
by
an
Heir
of
Law
to
a
Writ
of
Dower
:
Now
what
doth
give
her
an
Equity
against
the
Respondent
?
Her
Claim
is
by
,
from
,
and
under
her
Husband
,
as
having
a
Right
to
a
Proportion
of
what
he
had
,
that
is
a
Right
by
the
Law
:
where
is
the
Equity
that
should
improve
or
mend
this
Right
?
Perhaps
it
must
be
agreed
,
That
if
the
Husband
had
just
before
Marriage
made
a
long
Lease
on
purpose
to
prevent
Dower
,
and
the
Woman
expecting
the
Priviledges
which
the
Common
Law
gives
to
Women
married
,
had
surviv'd
him
,
Equity
might
have
interposed
;
and
yet
even
this
was
practised
by
a
Reverend
Judge
of
Equity
,
Mr.
Serjeant
Maynard
,
who
made
such
Lease
to
his
Man
Bradford
,
the
day
before
his
last
Marriage
:
but
here
is
no
such
Action
,
't
was
an
old
Term
created
by
the
old
Earl
of
Warwick
.
As
to
the
Case
of
the
Mortgages
,
The
Feme
intituled
to
Dower
is
let
in
,
because
the
Person
who
is
the
Mortgagee
hath
no
Interest
but
to
have
his
Money
;
and
Equity
is
to
execute
all
these
Agreements
,
but
never
where
there
is
a
Purchaser
,
or
where
the
Interest
of
the
Mortgage
is
assigned
to
the
Heire
:
Between
her self
and
the
Mortgagee
,
she
comes
in
place
of
her
Husband
,
and
the
Husband
could
redeem
,
and
so
may
the
Wife
;
but
against
a
Purchaser
she
has
no
more
Equity
then
her
Husband
had
,
and
that
is
none
at
all
.
If
she
hath
a
Legal
Title
antecedent
to
the
Purchasers
,
as
Marriage
and
Seisin
,
where
there
's
no
Term
standing
out
,
that
shall
prevail
,
and
Equity
shall
not
help
the
Purchaser
against
her
:
so
where
the
Purchaser
hath
a
Legal
Title
as
by
a
Term
precedent
,
Equity
cannot
relieve
her
.
And
whereas
it
was
objected
,
That
there
was
no
Case
adjudged
in
Chancery
against
the
Appellants
pretence
;
the
Answer
is
plain
,
The
Common
Law
is
against
it
;
and
if
no
Precedent
in
Equity
,
the
Common
Law
ought
to
stand
:
'T
is
nothing
but
Precedent
that
Consecrates
half
the
Decrees
in
Equity
:
And
no
Man
will
say
,
that
ever
any
Woman
was
endowed
in
Equity
of
a
Trust
Estate
.
If
a
Man
hath
a
Term
for
Ten
thousand
years
,
and
be
entirely
and
properly
owner
of
it
,
tho'
the
same
be
equal
in
value
to
a
Feesimple
,
for
the
Reversion
after
it
is
worth
little
or
nothing
,
yet
no
Dower
can
be
claimed
in
Equity
;
nay
,
If
the
Husband
be
seized
together
with
another
Person
,
and
not
sole
seized
,
yet
no
Dower
,
even
in
Chancery
,
can
be
claimed
against
the
Survivor
:
So
that
Equity
doth
not
exceed
the
Rules
of
Law
in
advancing
the
Right
of
Dower
.
'T
is
true
,
unless
Fraud
be
in
the
Case
,
(
according
to
the
Case
of
Nash
and
Preston
in
Cro.
Car.
190
,
191.
)
Relief
in
Equity
shall
not
be
given
against
a
Legal
Title
to
Dower
;
yet
't
is
as
true
,
that
where
the
Law
doth
not
give
Dower
,
Equity
will
not
,
unless
there
be
Fraud
and
Covin
used
to
prevent
it
,
and
then
common
Reason
enjoyns
a
Court
of
Conscience
to
Relieve
.
If
any
Allowance
had
been
in
the
Purchase
,
upon
Consideration
of
the
Title
to
Dower
,
the
same
would
have
been
a
very
material
Argument
;
but
in
this
Case
there
was
none
:
And
therefore
't
was
prayed
that
the
Dismission
might
be
affirmed
,
and
it
was
so
.
Dominus
Rex
versus
Baden
.
WRit
of
Error
,
to
Reverse
a
Judgment
given
in
the
Court
of
Exchequer
,
and
affirmed
upon
a
Writ
of
Error
in
the
Councel
Chamber
before
the
Chancellor
,
with
the
Assistance
of
the
two
Chief
Justices
.
The
Case
upon
the
Record
was
only
this
;
One
Allen
outlaws
one
Clerk
in
Debt
on
a
Bond
in
Mich.
1690.
on
the
Seventh
of
Jan.
1690.
by
virtue
of
a
Special
Capias
utlagatum
,
and
inquisition
thereupon
,
seizes
Clerk's
Lands
into
their
Majesties
hand
.
In
Hillary
Term
following
the
Outlawry
and
Inquisition
are
certified
into
the
Exchequer
,
and
Allen
obtains
a
Lease
under
a
Rent
.
In
Mich.
1692.
Baden
comes
and
pleads
that
in
Mich.
4
Jac.
2.
he
recovered
a
Judgment
against
Clerk
for
1080
l.
that
in
Trinity
Term
1691.
he
took
out
an
Elegit
,
and
had
a
Moiety
of
the
Lands
extended
,
and
therefore
prays
that
an
amoveas
manus
may
be
awarded
.
Mr.
Attorney
replies
,
That
the
Lands
were
seized
by
virtue
of
the
Outlawry
and
Inquisition
long
before
the
Elegit
was
sued
,
and
therefore
,
&c.
Baden
demurs
,
and
Judgment
for
the
King
.
It
was
argued
on
behalf
of
the
Plaintiff
in
the
Writ
of
Error
,
that
this
Judgment
was
Erroneous
,
for
that
there
's
a
vast
difference
between
an
Outlawry
in
a
Civil
,
and
one
in
a
Criminal
Process
:
That
in
a
Civil
Action
,
't
is
only
a
Civil
Process
for
the
benefit
of
the
Party
;
and
5
Edw.
3.
cap.
12.
the
King
cannot
pardon
an
Outlawry
at
the
Suit
of
a
private
Person
;
that
't
is
only
to
help
one
Subject
to
his
Debt
from
another
;
that
the
King
hath
no
Advantage
by
it
,
and
so
no
need
of
a
Preference
by
reason
of
the
Prerogative
;
that
at
Common
Law
no
Man
could
be
outlawed
;
that
now
it
is
purely
given
for
the
sake
of
the
Plaintiff
;
that
the
common
Practise
is
to
make
a
Lease
,
or
grant
a
privy
Seal
to
the
Party
:
That
by
this
Outlawry
the
King
hath
no
Interest
in
the
Land
;
he
cannot
cut
down
the
Trees
,
9
H.
6.20
.
that
he
cannot
Plow
or
Sow
;
but
only
collect
and
receive
the
Profits
which
arise
out
of
the
Land
,
Bro.
tit
.
Outlawry
36.
tit
.
Patents
3.
that
the
King
hath
not
the
possession
of
the
Land
,
which
shews
it
not
to
be
a
Forfeiture
to
the
King
,
but
it
remains
the
Parties
still
,
in
respect
of
Ownership
,
he
may
make
a
Feoffment
,
21
Hen.
7.7
.
2
Inst.
675.
Hob.
122.
by
the
Judgment
the
Lands
were
bound
,
tho'
the
Title
was
not
compleat
,
till
the
Elegit
was
sued
out
;
a
monstrans
de
droit
or
Petition
did
lye
,
and
now
the
same
Matter
may
be
pleaded
.
'T
was
further
argued
,
That
great
Mischief
must
follow
,
if
an
Outlawry
upon
Civil
Process
may
defeat
a
Judgment
;
that
Judgments
with
release
of
Errors
are
taken
and
used
as
common
Securities
;
that
this
is
most
plainly
a
device
to
avoid
them
;
that
this
can
be
no
Security
,
if
an
Elegit
may
not
be
sued
,
but
prevented
by
the
Party
himself
,
for
here
it
is
his
own
default
,
not
to
avoid
this
Outlawry
by
Appearance
;
that
no
act
of
the
Debtor
could
alter
the
Security
,
and
there
's
no
reason
why
his
neglect
should
:
that
this
Contest
is
between
Baden
and
Allen
;
and
not
between
Baden
and
the
King
.
Allen's
Suit
was
but
just
begun
,
and
this
is
meerly
upon
his
Suit
;
If
the
Person
had
been
taken
upon
this
Capias
,
he
had
been
the
Plaintiff's
prisoner
;
and
if
he
Escapes
the
Plaintiff
had
an
Action
for
it
,
Yelv.
19.
and
the
supposed
Forfeiture
is
only
for
his
Interest
,
3
Cro.
909.
And
by
this
practise
the
King's
Prerogative
is
to
assist
one
Subject
to
deceive
another
:
By
the
Law
a
Judgment
is
preferrable
to
a
Bond
,
and
binds
the
Land
,
which
a
Bond
doth
not
till
Judgment
upon
it
;
now
here
the
first
is
to
be
postponed
,
by
reason
of
the
King
's
supposed
Prerogative
,
which
is
only
a
Right
in
the
King
,
for
the
use
of
the
Party
to
have
the
Profits
,
2
Rolls
Abridg.
808.
vide
Stamford
57.
1
Inst.
30.
&
Hardres.
101
,
176.
1
Inst.
202.
Latch
.
43.
That
the
Elegit
hath
Relation
to
the
Judgment
,
and
so
becomes
Prior
to
the
King's
Title
,
like
the
Relation
of
a
Bargain
and
Sale
to
an
Inrolment
;
and
as
a
strong
Argument
for
it
,
the
words
in
the
Writ
of
Elegit
were
repeated
and
enforced
,
quo
die
Jud
'
reddit'
fuit
,
which
shewed
a
relation
to
that
day
;
and
consequently
did
affect
the
Lands
at
a
time
when
the
King
had
no
Interest
in
it
.
On
the
other
side
,
it
was
argued
with
the
Judgment
,
That
this
was
the
common
Practise
of
the
Court
of
Exchequer
in
this
Case
,
that
the
Course
of
a
Court
is
the
Law
of
that
Court
,
and
to
be
taken
notice
of
by
all
other
Courts
,
that
't
is
time
out
of
mind
,
and
consequently
of
equal
duration
with
the
Common
Law
,
and
always
deemed
to
be
parcel
thereof
;
that
the
Records
and
Experience
of
the
ancient
Clerks
were
both
concurring
to
prove
it
the
common
Usage
in
the
Exchequer
,
that
when
Lands
are
seized
into
the
K's
hands
by
virtue
of
an
Outlawry
and
Inquisition
,
it
was
never
known
that
the
King's
hands
,
were
removed
by
force
of
an
Elegit
sued
afterwards
,
tho'
upon
a
Judgment
precedent
;
that
it
hath
been
their
constant
practise
to
continue
the
pernancy
of
the
Profits
in
the
King
,
notwithstanding
such
Elegit
;
that
't
would
be
of
dangerous
Consequence
to
alter
the
same
by
a
new
Opinion
;
that
't
is
not
so
very
material
,
whether
this
practise
be
more
reasonable
then
another
,
but
whether
it
be
certain
and
known
?
for
if
it
be
so
,
't
is
much
better
to
have
it
continued
then
changed
,
because
of
the
Confusion
which
must
follow
,
by
shaking
the
Rights
and
Possessions
enjoyed
under
the
former
Practise
:
That
't
is
not
in
many
Cases
so
considerable
what
the
Rule
is
,
as
that
it
be
fixed
and
understood
;
and
therefore
no
reason
to
alter
it
,
or
at
least
not
without
the
use
of
the
Legislature
;
for
by
the
same
colour
that
some
Judges
of
Parts
and
Segacity
shall
think
fit
to
swerve
from
their
Predecessors
,
others
of
less
capacity
may
pretend
to
do
the
same
,
and
so
nothing
but
uncertainty
would
ensue
.
But
besides
,
this
is
not
meerly
a
Course
of
the
Court
,
't
is
also
agreeable
to
the
Rule
and
Reason
of
the
Laws
;
Baden
hath
no
interest
in
the
Land
'till
he
sues
his
Elegit
;
whereas
the
King's
Title
to
the
Land
was
compleat
by
the
Outlawry
and
Inquisition
,
which
was
prior
to
the
Elegit
;
and
a
Judgment
of
it self
doth
not
affect
the
Land
,
till
Election
made
;
a
Judgment
at
Law
is
only
an
Award
of
the
Court
ascertaining
of
the
Debt
,
and
declaring
that
the
Plaintiff
shall
recover
.
In
it self
it
doth
no
more
assect
the
Land
,
then
a
Bond
;
't
is
true
,
when
the
Suit
is
ended
by
a
Judgment
,
the
Party
may
resort
to
an
Elegit
for
his
Execution
,
if
he
thinks
fit
,
and
can
find
any
thing
subject
thereto
.
At
the
Common
Law
,
before
the
Statute
of
Westminst
2.
cap.
18.
a
Subject
upon
his
Judgment
for
Debt
or
Damages
,
could
not
have
Execution
by
taking
away
the
Possession
of
his
Adversary's
Land
,
because
that
would
hinder
the
Man's
following
of
Husbandry
and
Tillage
,
which
then
was
reckoned
beneficial
to
the
Publick
:
So
is
2
Inst.
394.
and
Sir
William
Herbert's
Case
,
3
Rep.
11
,
12.
nothing
but
a
Levari
or
Fieri
facias
;
then
by
the
Statute
,
sit
in
Electione
illius
,
and
Coke
in
his
Comment
on
those
words
,
saith
,
After
the
suing
of
an
Elegit
,
he
can't
have
a
Capias
:
So
that
by
him
,
the
suing
out
of
the
Writ
,
is
the
determining
of
his
Election
,
2
Inst.
395.
Foster
and
Jackson's
Case
,
Hob.
57.
Even
the
Elegit
it self
doth
not
(
when
sued
out
)
immediately
touch
the
Lands
;
for
if
that
the
Chattels
be
sufficient
to
pay
the
Debt
,
and
it
so
appears
to
the
Sheriff
,
that
thereby
he
may
satisfie
the
Plaintiffs
Demand
,
then
he
ought
not
to
extend
the
Land
;
and
this
appears
by
the
frame
of
the
Writ
,
as
't
is
in
the
Register
299.
2
Inst.
395.
which
shews
that
no
Title
can
be
acquired
to
the
Land
,
till
the
same
be
Extended
.
The
Elegit
cannot
by
Law
have
relation
to
the
Time
of
the
Judgment
,
so
as
to
avoid
the
King's
Title
;
for
relation
is
only
a
Fiction
,
and
Fiction
shall
never
bind
or
prejudice
the
King
in
his
Right
,
much
less
in
his
Prerogative
;
and
no
Case
can
be
shewn
,
where
a
Relation
shall
conclude
the
King
:
nor
is
it
any
Objection
,
That
this
is
a
Prerogative
for
the
Benefit
of
a
Subject
;
for
in
truth
,
all
the
Prerogatives
are
for
the
Advantage
and
Good
of
the
People
,
or
else
they
ought
not
to
be
allowed
by
the
Law
.
Besides
Practise
and
Reason
,
there
's
express
Authority
in
our
Books
for
it
,
as
the
Case
of
Masters
versus
Sir
Herbert
Whitfield
1657.
Hardres
.
106.
And
if
there
were
no
Book
for
it
,
the
Practise
is
enough
;
for
the
printing
of
a
Case
doth
not
alter
or
change
the
nature
of
it
:
't
is
as
much
Authority
if
it
be
not
published
,
as
when
it
is
so
:
Masters
recovered
a
Judgment
against
Sir
Herbert
Whitfield
,
and
after
the
Judgment
Sir
Herbert
was
outlawed
at
another
Man's
Suit
,
and
his
Lands
seized
into
the
Protector
's
hands
,
and
afterwards
Masters
took
out
an
Elegit
,
and
the
whole
Court
was
of
Opinion
,
that
the
Lands
being
seized
into
the
Protector
's
hands
before
the
Elegit
was
sued
out
,
there
could
not
be
an
amoveas
manus
awarded
,
altho'
the
Judgment
was
prior
to
the
Outlawry
;
this
is
the
same
with
the
Case
at
Bar
;
and
tho'
it
may
be
surmised
,
That
this
was
an
Opinion
vented
in
Evil
Times
,
yet
't
is
well
known
,
that
excepting
their
Criminal
Proceedings
in
those
Times
,
the
Law
flourished
,
and
the
Judges
were
Men
of
Learning
,
as
Mr.
Justice
Twisden
hath
often
affirmed
upon
the
Bench.
'T
was
further
urged
,
That
Prerogative
was
to
be
favoured
;
that
't
was
a
part
of
the
Law
,
2
Inst.
296.
especially
when
't
was
used
,
as
in
this
Case
,
to
help
an
honest
Man
to
his
Debt
;
that
confessing
of
Judgments
was
oftner
practised
by
Fraud
to
cover
Mens
Estates
,
then
Outlawries
were
to
defeat
just
Judgments
:
That
if
this
Judgment
was
just
and
honest
,
't
was
his
own
default
,
not
to
sue
an
Elegit
immediately
.
Then
were
cited
many
Cases
to
prove
the
King's
Prerogative
,
as
Fleetwood's
Case
,
8
Rep.
171.
York
and
Athen's
Case
,
Lane's
Rep.
20.
Hob.
115.
2
Rolls
Abridg.
158.
Stevenson's
Case
,
1
Cro.
389
,
390.
'T
was
argued
that
nothing
could
be
inferred
from
Tanfield's
Opinion
in
2
Rolls
Abridg.
159.
which
is
also
in
Lane's
Rep.
65.
for
there
the
Debt
was
not
a
Debt
to
the
King
,
till
after
the
Death
of
the
Testator
;
but
here
is
a
Forfeiture
to
the
King
before
the
Elegit
sued
:
and
admitting
that
the
King
hath
only
the
pernancy
of
the
Profits
,
yet
while
he
hath
so
,
no
other
Person
can
intermeddle
,
for
the
King
is
intituled
to
all
the
Profits
,
even
to
a
Presentment
to
a
Church
,
which
was
void
before
the
Outlawry
,
as
is
Beverly's
Case
,
1
Leon.
63.
2
Rolls
Abridg.
807.
and
Oland's
Case
,
5
Rep.
116.
And
Process
of
Outlawry
is
to
be
favoured
and
encouraged
,
as
't
is
a
Means
for
the
recovery
of
just
Debts
;
and
the
effects
of
them
,
by
Forfeiture
to
the
King
,
ought
to
be
favoured
as
a
Prerogative
,
wherewith
the
King
is
intrusted
to
that
purpose
:
'T
is
a
Penalty
or
Judgment
upon
him
to
be
put
Extra
Legem
,
because
he
contemns
the
Law
,
and
will
not
obey
it
;
so
that
as
to
him
,
't
is
the
greatest
Justice
in
the
World
,
that
he
should
not
enjoy
any
benefit
of
his
Estate
by
virtue
of
the
Law
,
during
the
time
that
he
despises
it
.
And
as
to
Baden
,
't
was
his
own
default
that
he
did
not
extend
sooner
;
he
trusted
the
Party
longer
then
he
should
,
and
for
that
he
may
thank
himself
:
Wherefore
upon
the
whole
,
't
was
prayed
that
the
Judgment
should
be
affirmed
,
and
it
was
affirmed
.
Hall
&
al'
Executors
of
Tho.
Thynne
,
Versus
Jane
Potter
Administratrix
of
George
Potter
.
APpeal
from
a
Decree
of
Dismission
in
the
Court
of
Chancery
:
The
Case
was
thus
;
That
Thomas
Thynne
Esq
;
having
intentions
to
make
his
Addresses
to
the
Lady
Ogle
,
gave
a
Bond
of
1000
l.
Penalty
to
the
Respondents
Husband
to
pay
500
l.
in
Ten
days
after
his
Marriage
with
the
Lady
Ogle
;
the
Respondent
assisted
in
promoting
the
said
Marriage
,
which
afterwards
took
effect
;
soon
after
the
said
Thynne
was
barbarously
murdered
;
and
about
six
years
after
Mr.
Potter
brought
an
Action
upon
this
Bond
against
the
Appellants
,
as
Executors
of
Mr.
Thynne
,
and
proving
the
Marriage
,
recovered
a
Verdict
for
the
1000
l.
Thereupon
the
Appellants
preferred
their
Bill
in
Chancery
to
be
relieved
against
this
Bond
,
as
given
upon
an
unlawful
Consideration
;
the
Defendants
by
their
Answer
acknowledge
the
Promotion
of
that
Marriage
to
be
the
Reason
of
giving
the
Bond.
Upon
hearing
the
Cause
at
the
Rolls
,
the
Court
decreed
the
Bond
to
be
delivered
up
,
and
Satisfaction
to
be
acknowledged
upon
the
Judgment
.
The
Respondent
petitioned
the
Lord
Keeper
for
a
re-hearing
;
and
the
same
being
re-heard
accordingly
,
his
Lordship
was
pleased
to
Reverse
that
Decree
,
and
ordered
the
Respondents
to
pay
Principal
,
Interest
and
Costs
,
or
else
the
Bill
to
stand
dismist
with
Costs
.
And
it
was
argued
on
behalf
of
the
Appellants
,
That
this
Bond
ought
in
equity
to
be
set
aside
,
for
that
even
at
the
Common
Law
,
Bonds
founded
upon
unlawful
Considerations
appearing
in
the
condition
were
void
;
that
in
many
Instances
,
Bonds
and
Contracts
that
are
good
at
Law
,
and
cannot
be
avoided
there
,
are
cancelled
in
Equity
:
That
such
Bonds
to
Match-makers
and
Procurers
of
Marriage
are
of
dangerous
Consequence
,
and
tend
to
the
betraying
,
and
oftentimes
to
the
ruin
of
Persons
of
Quality
and
Fortune
:
And
if
the
use
of
such
Securities
and
Contracts
be
allowed
and
countenanced
,
the
same
may
prove
the
occasion
of
many
unhappy
Marriages
,
to
the
prejudice
and
discomfort
of
the
best
of
Families
;
that
the
Consideration
of
such
Bonds
and
Securities
have
always
been
discountenanced
,
and
Relief
in
Equity
given
against
them
,
even
so
long
since
as
the
Lord
Coventry's
time
,
and
long
before
;
and
particularly
in
the
Case
of
Arundel
and
Trevilian
;
betweeen
whom
the
Fourth
of
February
,
11
Car.
1.
was
an
Order
made
in
these
,
or
the
like
words
:
Vpon
the
hearing
and
debating
of
the
Matter
this
present
day
in
the
presence
of
the
Counsel
Learned
,
on
both
sides
,
for
and
touching
the
Bond
or
Bill
of
100
l.
against
which
the
Plaintiff
by
his
Bill
prayeth
relief
.
It
appeared
that
the
said
Bill
was
originally
entred
into
by
the
Plaintiff
unto
the
Defendant
for
the
payment
of
100
l.
formerly
promised
unto
the
said
Defendant
by
the
Plaintiff
,
for
the
effecting
of
a
Marriage
between
the
Plaintiff
and
Elizabeth
his
now
Wife
,
which
the
said
Defendant
procured
accordingly
,
as
his
Counsel
alledged
.
But
this
Court
utterly
disliking
the
Consideration
whereupon
the
said
Bill
was
given
,
the
same
being
of
dangerous
consequence
in
precedent
,
upon
reading
three
several
Precedents
,
wherein
this
Court
hath
relieved
others
in
like
Cases
,
against
Bonds
of
that
nature
,
thought
not
fit
to
give
any
countenance
unto
Specialties
entred
into
upon
such
Contracts
:
It
is
therefore
ordered
and
decreed
,
That
the
said
Defendant
shall
bring
the
said
Bill
into
this
Court
,
to
be
delivered
up
to
the
Plaintiff
to
be
cancelled
.
Then
't
was
further
urged
,
That
the
Appellants
had
once
a
Decree
at
the
Rolls
to
be
relieved
against
the
Bond
in
question
,
upon
consideration
of
the
said
Precedent
in
the
time
of
the
said
Lord
Coventry
and
others
;
and
of
the
Mischiefs
and
Inconveniences
likely
to
arise
by
such
Practises
,
which
increase
in
the
present
Age
,
more
then
in
the
Times
when
Relief
was
given
against
such
Bonds
:
and
therefore
't
was
pray'd
that
the
Decree
might
be
Reversed
.
On
the
other
side
it
was
urged
,
That
the
Consideration
of
this
Bond
was
lawful
;
that
the
assisting
and
promoting
of
a
Marriage
at
the
Parties
request
,
was
a
good
Consideration
at
Law
,
in
all
Times
,
to
maintain
a
Promise
for
payment
of
Money
:
That
this
Bond
was
voluntary
,
and
the
Party
who
was
Obligor
was
of
Age
and
sound
Memory
;
that
here
was
no
Fraud
or
Deceit
in
procuring
it
;
that
Chancery
was
not
to
Relieve
against
Voluntary
Acts
;
that
here
was
a
great
Fortune
to
be
acquired
to
the
Appellant's
Testator
by
the
Match
;
that
here
was
Assistance
given
;
that
the
Persons
were
both
of
great
Quality
and
Estate
,
and
no
Imposition
or
Deceit
on
either
side
in
the
Marriage
:
That
it
might
be
proper
to
Relieve
against
such
Securities
,
where
ill
Consequences
did
ensue
;
yet
here
being
none
,
and
the
thing
lawful
,
and
the
Bond
good
at
Law
,
the
same
ought
to
stand
;
that
here
are
no
Children
Purchasers
or
Creditors
to
be
defeated
;
that
there
are
Assets
sufficient
to
pay
all
;
and
consequently
there
can
be
no
Injustice
in
allowing
this
Bond
to
remain
in
force
;
that
it
was
the
Expectation
of
the
Respondent
,
without
which
she
would
not
have
given
her
Service
in
this
Matter
;
and
that
it
was
the
full
meaning
of
the
Appellant's
Testator
to
pay
this
Money
,
in
case
the
Marriage
took
effect
;
that
there
was
a
vast
difference
between
supporting
and
vacating
a
Contract
in
Chancery
;
that
tho'
Equity
perhaps
would
not
assist
and
help
a
Security
upon
such
a
Consideration
,
if
it
were
defective
at
Law
;
yet
where
it
was
good
at
Law
,
and
no
Cheat
or
Imposition
upon
the
Party
,
but
he
meant
(
as
he
had
undertaken
)
to
pay
this
Money
,
and
was
not
deceived
in
his
Expectation
,
as
to
the
Success
of
the
Respondent's
Endeavours
,
't
would
be
hard
in
Equity
to
damn
such
a
Security
,
and
therefore
't
was
prayed
that
the
Decree
should
be
affirmed
.
It
was
replied
,
That
Marriages
ought
to
be
procured
and
promoted
by
the
Mediation
of
Friends
and
Relations
,
and
not
of
Hirelings
;
that
the
not
vacating
such
Bonds
,
when
questioned
in
a
Court
of
Equity
,
would
be
of
Evil
Example
to
Executors
,
Trustees
,
Guardians
,
Servants
,
and
other
People
having
the
Care
of
Children
.
And
therefore
't
was
prayed
that
the
Decree
might
be
reversed
,
and
it
was
reversed
accordingly
.
The
Society
of
the
Governour
and
Assistants
,
London
,
of
the
new
Plantation
of
Ulster
in
the
Kingdom
of
Ireland
,
Versus
William
Lord
Bishop
of
Derry
.
APpeal
from
a
Judgment
by
the
Lords
Spiritual
and
Temporal
of
Ireland
in
Parliament
assembled
,
upon
the
Bishop's
Petition
and
Appeal
to
their
Lordships
form
an
Order
in
the
Chancery
,
touching
certain
Lands
in
the
County
and
Liberties
of
London-Derry
:
It
sets
forth
,
amongst
other
things
,
(
after
a
recital
of
the
Proceedings
in
Chancery
and
the
Merits
of
the
Cause
)
that
the
Appellants
were
advised
,
that
no
Appeal
lyes
to
the
House
of
Lords
in
Ireland
from
the
Court
of
Chancery
there
,
but
that
all
Appeals
from
thence
ought
to
be
immediatly
to
their
Lordships
here
,
the
Supreme
Judicature
as
well
for
Matters
arising
in
Ireland
as
in
this
Kingdom
:
and
therefore
in
the
Conclusion
,
prays
that
an
Order
might
be
made
for
the
said
Bishop
to
appear
,
and
put
in
his
Answer
thereto
,
that
the
Matter
might
be
heard
before
their
Lordships
here
,
when
it
should
be
thought
fit
,
and
that
the
Petitioners
might
receive
such
relief
as
should
be
agreeable
to
their
Lordships
great
Wisdom
and
Justice
,
&c.
Upon
presenting
this
Appeal
to
the
Lords
here
,
the
House
appointed
Lords
Committees
to
consider
the
proper
method
of
Appealing
from
the
Decrees
made
in
the
Court
of
Chancery
in
Ireland
,
and
to
report
,
&c.
Then
pursuant
to
an
Order
made
by
the
Lords
Committees
,
and
a
Letter
sent
to
the
Lords
Justices
of
Ireland
,
by
Order
of
the
House
of
Lords
here
.
Some
Precedents
or
Cases
from
Ireland
relating
to
the
method
of
appealing
from
the
Chancery
there
,
were
brought
before
the
said
Committee
,
and
reported
to
the
House
;
whereupon
the
House
ordered
that
both
Parties
might
have
Copies
of
the
same
.
Then
the
Society
took
Copies
,
and
preferred
a
short
Petition
to
the
House
,
setting
forth
the
said
matter
,
and
that
they
were
ready
by
their
Councel
to
offer
several
things
,
in
order
to
their
Lordship's
receiving
and
proceeding
upon
their
said
Appeal
,
whereupon
,
a
day
was
appointed
for
the
hearing
of
Councel
on
both
sides
,
with
regard
to
Jurisdiction
.
And
,
It
was
accordingly
argued
on
behalf
of
the
said
Society
,
that
the
Judgments
in
Ireland
,
whether
in
Law
or
Equity
,
were
not
to
be
finally
Determined
there
,
that
Ireland
was
dependant
upon
England
;
't
was
urged
to
prove
it
,
that
our
Money
was
to
be
Current
there
,
that
our
Laws
did
oblige
them
,
that
they
were
governed
secundum
leges
&
consuetudines
anglicanas
,
Davis
21.
in
which
Book
24.
that
the
Easterlings
in
England
,
who
first
made
the
Money
of
this
Standard
,
(
and
from
whose
Name
comes
that
of
Sterling
,
)
were
the
first
Founders
of
the
four
Principal
Cities
of
Ireland
,
Dublin
,
Waterford
,
Corke
,
and
Limrick
,
and
the
other
Maritime
Villes
in
that
Country
,
and
were
the
sole
Maintainers
of
Traffick
and
Commerce
there
,
which
were
all
utterly
neglected
by
the
Irish
.
These
Cities
and
Villes
were
under
the
Protection
of
King
Edgar
,
and
Edward
the
Confessor
,
before
the
Norman
Conquest
,
and
these
Easterlings
in
Ancient
Record
,
are
called
Ostmanni
;
and
therefore
when
Hen.
2.
Upon
the
first
Conquest
,
after
their
Apostacy
,
thought
fit
to
People
those
Cities
and
Villes
with
English
Colonies
drawn
from
Exeter
,
Bristol
,
and
Chester
,
&c.
he
assigned
to
them
a
certain
proportion
of
Land
,
next
adjoyning
to
each
of
those
Cities
,
which
Portion
,
is
called
in
the
Records
in
Ancient
time
,
Cantreda
Ostmannorum
;
Davis
25.
says
further
,
that
Ireland
is
a
Member
of
England
,
&
Inhabitantes
ibidem
legibus
Angliae
subjiciuntur
&
utuntur
.
In
the
Statute
of
Faculties
,
28
Hen.
8.
cap.
19.
't
is
mentioned
to
be
the
King's
Land
of
Ireland
,
and
that
this
the
King's
Land
of
Ireland
,
is
a
Member
Appendant
,
and
rightfully
belonging
to
the
Imperial
Crown
of
the
Realm
of
England
,
and
united
to
the
same
.
And
in
the
33
Hen.
8.
cap.
1.
by
which
the
Stile
and
Title
of
King
of
Ireland
,
was
given
to
Hen.
8.
his
Heirs
and
Successors
;
't
is
further
Enacted
,
that
the
King
shall
enjoy
this
Stile
and
Title
,
and
all
other
Royal
preeminences
,
Prerogatives
,
and
Dignities
,
as
united
and
annexed
to
the
Imperial
Crown
of
England
.
Nay
,
It
may
be
compared
to
a
County-Palatine
,
Created
by
the
King
of
England
;
for
,
Davis
62.
speaking
of
that
,
he
says
,
that
a
County-Palatine
hath
in
it
,
jura
regalia
,
which
consists
in
Royal
Jurisdiction
,
and
Royal
Seignory
.
By
the
first
,
it
hath
all
its
High
Courts
and
Officers
of
Justice
which
the
King
hath
;
and
by
the
latter
,
it
hath
Royal
Services
,
and
Royal
Escheates
,
as
the
King
hath
;
and
therefore
in
some
respects
,
't
is
separated
and
disjoyned
from
the
Crown
,
as
is
Plowd.
215.
yet
't
is
subordinate
and
dependant
;
though
it
be
said
,
that
breve
Dom'
Regis
non
Currit
there
,
yet
the
Writ
of
Error
,
which
is
the
dernier
resort
and
in
like
manner
an
Appeal
,
is
excepted
out
of
their
Charters
,
so
is
Dyer
321.
and
345.34
Hen.
6.42
.
and
it
would
be
excepted
,
if
it
were
not
so
expressed
;
for
to
have
the
ultimate
Judgment
,
is
that
which
the
King
cannot
grant
,
for
such
grant
,
would
(
if
allowed
)
alter
the
fundamental
constitution
of
the
Realm
.
So
,
in
Ireland
,
which
is
a
Realm
of
it self
,
as
Consisting
of
many
Counties
,
Erroneous
Judgments
given
in
the
chief
place
there
,
shall
be
reversed
in
the
King's
Bench
in
England
;
Davis
quotes
Bracton
,
lib.
3.
tit'
coron'
cap.
8.
that
Comites
Palatini
habent
regalem
jurisdictionem
in
omnibus
,
Salvo
Dominio
Regi
sicut
principi
;
so
that
by
his
Opinion
,
they
are
much
the
same
;
and
no
Man
will
deny
,
but
that
in
all
Proceedings
in
Law
or
Equity
,
the
last
resort
is
to
the
Parliament
of
England
;
there
it
is
that
the
King
's
supreme
Authority
is
exercis'd
.
It
must
not
be
said
to
be
a
Conquered
Country
,
for
the
Earl
of
Stassord's
sake
,
though
Coke
and
Vaughan
have
affirmed
it
so
:
But
it
may
be
called
a
Plantation
or
Colony
,
dependant
upon
England
,
and
to
many
purposes
,
parcel
of
it
.
This
hath
not
only
the
same
person
for
their
King
,
but
't
is
under
the
Crown
and
Government
of
England
;
there
must
be
in
all
these
Cases
a
Superiority
or
superintendency
over
inferiour
Dominions
;
for
otherwise
,
(
as
Vaughan
puts
it
,
401.
)
the
Law
appointed
or
permitted
to
such
places
might
be
insensibly
changed
within
it self
,
without
the
assent
of
the
Dominion
Superiour
.
And
,
2.
Judgments
or
Decrees
might
be
there
made
or
given
to
the
disadvantage
or
of
lessening
that
Superiority
,
which
cannot
be
reasonable
,
or
to
make
the
Superiority
to
be
only
in
the
King
,
not
in
the
Crown
of
England
,
(
as
King
Jac.
1.
would
have
had
it
,
and
consulted
Selden
upon
the
point
.
)
Now
though
the
Writ
of
Error
be
only
mentioned
,
yet
the
same
reason
holds
to
both
;
and
the
true
cause
,
why
we
have
not
so
many
Ancient
precedents
of
Equity
Cases
as
of
Law
ones
,
is
,
for
that
in
Ancient
time
the
Equity
Courts
were
not
so
high
,
meddled
with
few
matters
,
and
in
a
Summary
way
;
but
since
their
Authority
is
so
advanced
,
and
their
Jurisdiction
so
enlarged
,
that
most
questions
of
property
are
become
determinable
there
,
and
almost
every
suit
begins
or
ends
with
them
,
to
the
entire
subversion
of
the
Old
Common-Law
.
It
is
and
must
now
be
reasonable
to
have
the
Examination
of
their
final
Sentences
in
the
Parliament
of
England
as
well
as
of
the
other
.
Suppose
non-residence
in
Ireland
should
be
pretended
,
a
Forfeiture
of
the
Estate
to
the
next
remainder
Man
or
to
the
King
.
Can
it
be
safe
for
to
intrust
them
with
a
conclusive
Opinion
in
this
matter
.
When
Calais
was
in
our
hands
,
Writs
of
Error
lay
thither
,
21
Hen.
7.
fol.
3.
As
to
the
pretence
,
that
the
orders
of
this
House
cannot
be
executed
there
;
't
is
very
vain
,
for
if
the
King's
Bench
Command
their
Judgments
to
be
executed
there
;
this
House
may
order
theirs
;
and
in
like
manner
as
they
do
to
the
Chancery
here
.
In
15
Rich.
2.
numb
.
17.
in
the
Abbot
of
St.
Osithe's
Case
,
the
Lords
here
made
an
Order
,
and
charged
the
Lord
Chancellor
that
he
see
it
performed
;
and
this
hath
been
constant
practice
.
It
hath
been
imagined
,
That
the
Jurisdiction
of
this
House
in
matters
of
this
kind
,
is
dated
from
the
21
Jac.
1.
as
to
the
proceedings
in
Chancery
;
but
that
is
not
now
to
be
disputed
;
for
,
the
Commons
in
Parliament
Assembled
,
did
agree
it
to
be
the
Right
of
this
House
;
in
the
Case
of
Skinner
and
the
East-India
Company
;
and
in
the
Book
about
it
,
supposed
to
be
written
by
that
Noble
Lord
,
the
Lord
Hollis
,
105.
't
is
said
,
that
where
the
King
's
Sovereigntydoth
not
reach
,
the
Jurisdiction
of
this
House
cannot
;
the
contrary
is
implied
,
that
where
the
King
of
England's
Sovereignty
doth
extend
,
the
Jurisdiction
of
this
House
doth
so
too
;
and
no
Man
will
affirm
,
That
Ireland
is
out
of
or
beyond
the
limits
of
the
Sovereignty
of
the
English
Crown
.
And
as
to
the
exercise
of
this
Judicature
by
the
Lords
here
,
nothing
can
be
stronger
for
it
,
then
the
1
Hen.
4.
numb
.
79.
So
't
is
in
the
Record
,
though
in
Cotton's
Abridg
't
is
80.
the
Commons
declare
that
all
Judgments
Appertain
to
the
King
and
Lords
,
and
not
to
them
;
Skinner's
Case
,
199
,
200.
4
Inst.
349
,
353
,
354.
It
was
further
argued
,
That
Protection
commands
a
due
Subjection
,
and
that
these
people
who
insisted
upon
this
independency
,
had
forgot
the
English
Treasure
and
Bloud
,
which
had
been
spent
for
their
preservation
.
That
they
are
part
of
England
and
subject
to
its
Laws
,
appears
from
the
common
Case
of
an
incumbency
here
,
being
made
void
by
acceptance
of
a
Bishoprick
in
that
Colony
:
Besides
,
that
in
Ancient
time
the
Arch-Bishop
of
Canterbury
was
Primate
of
Ireland
,
and
had
the
Confirmation
and
Consecration
of
Bishops
there
,
Cambden's
Britt
.
pag.
735.
and
765.
4
Inst.
360.
then
't
was
urged
that
the
Question
now
was
,
whether
it
were
a
Dominion
inferiour
,
or
equal
to
and
independant
upon
the
Realm
of
England
:
That
the
constant
practice
had
been
for
the
Lords
here
to
examine
the
Decrees
in
their
Court
of
Chancery
,
that
the
refusing
of
this
Appeal
,
would
shake
all
those
Cases
thus
determined
;
that
every
Appeal-here
from
their
Equity
Sentences
,
(
which
have
been
very
many
)
was
an
Argument
against
the
Order
of
their
Lords
,
and
for
the
receiving
of
this
Appeal
here
:
That
this
thing
hath
been
acknowledged
,
even
by
the
Rebels
there
;
for
in
Sir
John
Temple's
History
of
the
first
Progress
of
the
Irish
Rebellion
,
written
1641.
pag.
141.
amongst
the
several
propositions
made
by
the
Irish
(
then
in
a
general
Rebellion
)
these
two
are
mentioned
.
1.
That
by
several
Acts
of
Parliament
to
be
respectively
passed
in
England
and
Ireland
,
it
should
be
declared
,
that
the
Parliament
of
Ireland
had
no
subordination
to
the
Parliament
of
England
,
but
should
have
supreme
Jurisdiction
in
that
Kingdom
,
as
Absolute
as
the
Parliament
of
England
here
hath
.
2.
That
the
Act
of
10
Hen.
7.
called
Poyning's
Act
,
and
all
other
Acts
expounding
or
explaining
that
Law
,
should
be
Repealed
;
both
which
with
their
other
dangerous
propositions
were
justly
rejected
:
however
,
it
shews
their
Opinion
,
that
at
that
time
the
Law
was
,
or
was
taken
and
deemed
to
be
against
them
in
this
point
:
and
there
is
as
much
reason
for
keeping
the
final
Judicature
here
,
as
there
is
for
maintaining
the
Superiority
and
Obligatory
Power
over
them
in
the
legislature
.
'T
was
farther
urged
,
That
the
with
holding
the
Irish
Lords
from
having
the
like
Jurisdiction
in
their
Parliament
as
the
Lords
in
England
have
,
in
Judging
upon
Appeals
and
Writs
of
Error
,
was
absolutely
necessary
for
the
preserving
of
the
Possessions
of
the
English
in
Ireland
;
for
those
of
that
Country
must
be
suppos'd
to
incline
to
their
own
interest
,
and
cannot
be
suppos'd
so
much
inclined
to
love
and
affect
the
English
amongst
them
:
And
that
this
Power
of
Judging
here
is
Co-eval
with
the
very
Constitution
of
the
Government
.
'T
was
further
urged
,
That
their
Precedents
returned
,
did
or
concern
the
point
in
Question
,
except
the
two
or
three
Cases
in
1661
,
and
1662.
and
two
Appeals
lately
in
1695.
that
their
Case
of
the
Prior
of
Lauthony
in
8
Hen.
6.
Prynnes
Animadversions
,
313
,
314
was
against
them
;
the
Prior
having
removed
a
Judgment
in
the
King's
-
Bench
in
Ireland
,
into
the
Parliament
there
,
which
affirmed
it
,
did
bring
a
Writ
of
Error
in
the
King's
-
Bench
in
England
,
and
they
refused
to
meddle
with
it
;
the
reason
was
,
because
the
Writ
of
Error
before
the
Lords
there
did
not
lie
,
and
that
it
ought
to
have
come
hither
immediately
;
and
all
the
rest
of
their
Quotations
in
their
Printed
Case
either
prove
nothing
at
all
,
or
too
much
;
for
they
are
against
the
allowance
of
Writs
of
Error
in
the
King's
-
Bench
in
England
,
and
against
the
Legislature
of
England's
being
able
to
oblige
the
people
of
Ireland
,
both
which
have
been
approved
by
constant
practice
,
and
therefore
it
was
prayed
,
that
the
Appeal
here
might
be
allowed
,
and
the
Order
of
the
Irish
Lords
might
be
vacated
.
On
the
other
side
,
it
was
argued
,
from
1
Inst.
141.
Prynne's
Animadversions
,
286.
and
4
Inst.
12.
that
their
Parliaments
had
the
same
Authority
there
in
respect
of
making
Laws
for
that
Country
as
the
Parliaments
have
for
England
;
that
they
have
ever
since
,
10
Hen.
7.
Re-enacted
there
such
subsequent
Acts
of
England
,
as
they
thought
good
for
them
;
and
that
they
had
the
like
Power
of
Appeals
,
Writs
of
Error
and
Impeachments
,
&c.
and
,
that
the
Cognizance
of
such
Appeals
in
England
would
produce
great
inconveniencies
,
by
making
poor
people
to
attend
here
;
whereas
,
they
might
with
less
trouble
and
expence
have
Justice
at
home
;
that
this
did
agree
with
the
reasons
of
that
Ancient
Statute
,
4
Inst.
356.
that
persons
having
Estates
in
Ireland
,
should
Reside
in
that
Kingdom
,
else
half
of
their
Estates
should
go
to
maintain
the
Forts
there
:
That
this
practice
of
receiving
Appeals
here
would
be
vexatious
to
the
people
of
that
place
;
and
that
no
Court
could
have
Jurisdiction
but
by
grant
or
prescription
,
and
that
there
could
be
no
pretence
for
either
in
this
place
.
Then
was
it
ordered
in
these
or
the
like
Words
;
Whereas
,
a
Petition
and
Appeal
was
offered
to
the
House
the
—
Day
of
—
last
,
from
the
Society
of
the
Governour
and
Assistants
London
of
the
New
Plantation
in
Ulster
,
in
the
Kingdom
of
Ireland
,
against
a
Judgment
given
by
the
Lords
Spiritual
and
Temporal
of
Ireland
,
in
Parliament
there
Assembled
,
on
the
—
day
of
—
last
upon
the
Petition
and
Appeal
of
William
Lord
Bishop
of
Derry
against
the
Decree
or
Orders
made
in
the
said
Cause
in
the
Court
of
Chancery
there
:
Whereupon
a
Committee
was
appointed
to
consider
of
the
proper
method
of
Appealing
from
Decrees
made
in
the
Court
of
Chancery
in
Ireland
;
and
that
pursuant
to
the
Orders
of
the
said
Committee
,
and
a
Letter
sent
to
the
Lords
Justices
of
Ireland
,
by
Order
of
this
House
,
several
precedents
have
been
transmitted
to
this
House
,
by
the
said
Lord
Justices
,
Copies
whereof
were
ordered
to
be
delivered
to
either
side
:
After
hearing
Counsel
upon
the
Petition
of
the
said
Society
of
London
,
presented
to
this
House
,
praying
that
they
might
be
heard
as
to
the
Jurisdiction
of
the
House
of
Lords
in
Ireland
,
in
receiving
and
judging
Appeals
from
the
Chancery
there
,
as
also
Counsel
for
the
Bishop
of
Derry
;
after
due
Consideration
of
the
Precedents
,
and
of
what
was
offered
by
Counsel
thereupon
;
It
is
ordered
and
adjudged
by
the
Lords
Spiritual
and
Temporal
in
Parliament
Assembled
,
That
the
said
Appeal
of
the
Bishop
of
Derry
,
to
the
House
of
Lords
,
in
Ireland
,
from
the
Decree
or
Orders
of
the
Court
of
Chancery
there
,
made
in
the
Cause
,
wherein
the
said
Bishop
of
Derry
was
Plaintiff
,
and
the
said
Society
of
the
Governour
and
Assistants
London
of
the
New
Plantation
in
Ulster
in
Ireland
,
were
Defendants
,
was
coram
non
judice
,
and
that
all
the
proceedings
thereupon
,
are
null
and
void
,
and
that
the
Court
of
Chancery
in
Ireland
,
ought
to
proceed
in
the
said
Cause
,
as
if
no
such
Appeal
had
been
made
to
the
House
of
Lords
there
;
and
if
either
of
the
said
Parties
do
find
themselves
Agrieved
by
the
said
Decree
or
Orders
of
the
Chancery
of
Ireland
,
they
are
at
liberty
to
pursue
their
proper
Remedy
by
way
of
Appeal
to
this
House
.
Sir
Caesar
Wood
alias
Cranmer
versus
Duke
of
Southampton
.
APpeal
from
a
Decree
in
Chancery
,
the
Case
was
thus
;
Sir
Henry
Wood
,
the
Appellant's
Unkle
,
makes
a
Settlement
,
in
Consideration
of
a
Marriage
to
be
had
between
his
Daughter
Mary
and
the
Duke
,
&c.
to
the
uses
following
,
i.e.
in
Trust
,
to
Receive
and
Pay
out
of
the
Profits
450
l.
a
Year
,
to
the
Lady
Chester
,
for
the
Education
and
Maintenance
of
his
Daughter
,
till
twelve
years
of
Age
,
then
550
l.
a
year
till
Marriage
,
or
Seventeen
years
of
Age
,
which
should
first
happen
:
and
in
Trust
to
pay
the
Residue
of
the
Profits
to
the
Duke
after
Marriage
,
he
first
giving
Security
to
the
said
Trustees
to
provide
Portions
and
Maintenance
for
the
Daughters
of
the
Marriage
equal
to
the
Sum
he
should
receive
;
and
in
case
there
should
be
none
,
then
the
same
Money
to
remain
to
the
Respondent
,
and
if
the
said
Mary
should
die
before
Marriage
,
or
Age
of
Seventeen
years
,
to
such
Uses
as
Sir
H.
W.
should
appoint
.
And
if
Mary
,
after
Sir
Henry's
death
,
die
under
Sixteen
,
the
Respondent
then
unmarried
to
any
other
Woman
,
or
after
and
before
Seventeen
,
the
Respondent
then
living
and
unmarried
;
or
if
before
Seventeen
she
should
marry
any
other
,
or
if
she
should
refuse
the
Respondent
,
then
20000
l.
out
of
the
Profits
to
the
Duke
.
But
if
the
said
Marriage
shall
take
effect
after
Mary's
Age
of
Sixteen
years
,
and
she
shall
have
Issue
Male
by
the
Respondent
,
then
for
the
better
Settlement
of
the
Premisses
upon
the
Issue
Male
,
and
a
more
ample
Provision
and
Maintenance
for
the
Respondent
and
his
Wife
,
and
the
longest
Liver
of
them
,
in
Trust
for
the
said
Duke
and
Mary
,
for
and
during
their
Lives
,
and
the
Life
of
the
longer
liver
of
them
;
and
after
their
Deaths
,
to
the
first
Son
,
&c.
in
Tail
Male
;
and
for
default
of
Issue
Male
to
the
Daughters
.
And
for
default
of
such
Issue
in
Trust
,
for
such
Persons
only
as
Sir
Henry
should
appoint
,
and
in
default
thereof
to
the
right
Heirs
of
Sir
Henry
.
Sir
Henry
W.
at
the
same
time
,
makes
his
Will
,
tho'
dated
after
the
Settlement
,
reciting
that
he
had
settled
the
Premisses
upon
the
Duke
and
Mary
for
their
Lives
,
and
the
Life
of
the
Longer
liver
of
them
,
&c.
and
confirms
it
;
and
in
Case
the
said
Martiage
should
not
take
effect
,
according
to
the
Limitations
of
the
Settlement
;
or
if
the
said
Respondent
should
die
without
Issue
by
Mary
;
or
if
he
have
Issue
by
her
,
and
that
Issue
die
without
Issue
,
then
the
Remainder
to
Mary
for
Life
,
and
afterwards
to
her
first
Son
;
and
after
several
mediate
Remainders
,
then
to
the
Appellant
for
Life
,
&c.
and
after
to
Thomas
Webb
,
&c.
Sir
Henry
Wood
dies
,
the
Marriage
between
Mary
and
the
Duke
afterwards
takes
effect
upon
her
arrival
to
years
of
Consent
:
and
they
lived
in
that
state
,
till
she
was
near
Seventeen
years
of
Age
,
and
then
she
dies
without
Issue
.
The
Court
of
Chancery
decreed
the
Profits
of
the
Estate
to
the
Duke
for
Life
.
It
was
argued
for
the
Appellant
,
That
here
was
a
precedent
Copulative
Condition
;
that
if
the
Marriage
take
effect
after
Sixteen
,
and
there
be
Issue
,
then
to
the
Duke
;
and
neither
of
these
being
in
the
Case
,
the
Decree
is
not
consistent
with
the
positive
words
of
the
Settlement
,
for
that
the
Duke
was
to
have
it
upon
no
other
terms
:
That
by
this
Settlement
the
Duke
was
thus
provided
for
:
1.
If
the
Marriage
did
not
take
effect
,
by
Mary's
refusal
or
taking
another
Husband
,
the
Duke
was
to
have
20000
l.
2.
If
the
Marriage
did
take
effect
,
and
Issue
was
had
,
then
the
Duke
was
to
have
an
Estate
for
Life
,
but
not
otherwise
;
that
the
words
are
plain
and
certain
,
that
there
must
not
only
be
a
Marriage
,
but
Issue
Male
between
them
;
that
tho'
it
should
be
agreed
to
be
a
good
Marriage
within
the
intention
of
the
Settlement
,
she
living
till
after
Sixteen
years
of
Age
,
yet
when
a
Condition
Copulative
,
consisting
of
several
Branches
(
as
this
doth
)
is
made
precedent
to
any
Use
or
Trust
,
the
entire
Condition
must
be
performed
,
or
else
the
Use
or
Trust
can
never
rise
or
take
place
:
And
it
is
not
enough
that
one
part
only
be
performed
.
As
to
the
Objection
from
the
intention
of
the
Parties
,
't
was
Answered
,
That
no
such
Intention
did
appear
,
or
reasonably
could
be
collected
from
any
thing
in
this
Deed
or
Will
:
and
it
would
be
too
great
a
violence
to
the
words
,
to
break
that
Condition
into
two
,
which
is
but
one
,
according
to
the
plain
and
natural
Contexture
and
Sense
of
it
.
It
hath
been
said
,
That
if
the
Duke
cannot
take
an
Estate
for
Life
in
the
Trust
,
unless
he
had
Issue
Male
by
the
Dutchess
,
then
she
her self
could
not
take
for
Life
by
that
Trust
,
unless
there
were
Issue
Male
,
for
that
their
Estates
are
limited
together
;
and
then
the
Consequence
would
be
,
That
if
there
were
Daughters
and
no
Sons
,
the
Daughters
would
have
the
Trust
of
the
Estate
in
their
Mother's
Life
time
,
and
their
Mother
nothing
,
which
could
not
be
the
intent
of
Sir
Henry
Wood.
To
this
it
was
answered
,
That
the
same
arises
from
a
plain
Mistake
,
and
a
Supposition
that
the
Daughters
(
if
any
)
should
take
,
tho'
there
never
were
a
Son
;
whereas
the
Limitation
to
the
Daughters
is
under
the
same
precedent
Condition
,
as
the
Limitation
to
the
Duke
and
Dutchess
is
:
For
the
precedent
Copulative
Condition
ushers
in
the
whole
Limitation
of
the
Trust
,
so
that
the
Trust
to
the
Daughters
could
no
more
arise
,
without
Issue
Male
born
,
than
the
Trust
to
the
Duke
and
Dutchess
.
And
whereas
't
is
pretended
,
That
at
this
rate
the
Duke
and
Dutchess
were
to
have
had
no
Subsistence
,
till
the
Birth
of
Issue
Male
,
which
might
be
many
years
:
it
was
answered
,
That
this
was
a
plain
mistake
of
the
Law
;
for
this
Trust
being
by
the
Deed
and
Will
thus
limited
upon
this
precedent
Condition
of
having
Issue
Male
,
they
whose
Estates
in
this
Trust
are
thus
limited
upon
this
Condition
,
can
take
nothing
till
the
Condition
be
performed
by
Marriage
and
Issue
Male
;
and
then
by
the
Rules
of
Law
,
till
some
of
those
Persons
to
whom
the
Trust
was
limited
,
could
take
,
the
Trust
of
the
Estate
descends
to
the
Heir
at
Law
,
and
she
was
intituled
to
the
Profits
,
till
the
precedent
Condition
should
be
performed
,
or
become
impossible
;
and
if
the
Condition
had
been
performed
,
the
Trusts
would
have
taken
effect
;
and
being
not
performed
,
but
becoming
impossible
by
the
Dutchesses
death
before
she
had
Issue
,
the
subsequent
Trusts
take
effect
upon
her
death
.
Besides
that
,
it
is
pursuant
to
the
Rules
of
the
Common
Law
,
which
gives
to
the
Husband
no
Estate
for
Life
in
the
Wives
Inheritance
,
unless
he
have
Issue
by
her
born
alive
;
wherefore
it
was
prayed
that
the
Decree
might
be
reversed
.
Then
it
was
argued
on
the
behalf
of
the
Respondent
,
That
Sir
Henry
Wood
by
the
same
Settlement
directs
,
that
if
the
Duke
died
before
his
Marriage
with
her
,
then
the
Trustees
should
dispose
of
the
Profits
of
the
Premisses
to
the
Lord
George
Palmer
,
the
Duke's
Brother
(
in
case
the
Brother
married
her
)
and
to
the
said
Mary
for
their
Lives
,
and
the
Life
of
the
longer
Liver
of
them
:
And
from
and
after
the
decease
of
the
Survivor
of
them
,
then
to
their
Issue
in
Tail
Male
,
&c.
without
adding
any
words
of
a
preceding
Condition
;
and
yet
says
,
In
like
manner
,
and
for
the
like
Estates
,
as
he
had
appointed
for
his
said
Daughter
and
the
Duke
,
in
case
of
their
Marriage
;
which
plainly
evidences
his
intention
to
be
,
That
the
said
Duke
and
the
Lady
Mary
should
have
the
Profits
during
their
Lives
,
altho'
they
should
never
have
Issue
Male
,
as
the
Brother
would
have
had
in
case
he
had
married
her
.
Then
't
was
urged
,
That
Sir
Henry
Wood's
appointing
the
Surplus
of
the
Profits
,
over
and
above
her
said
Maintenance
,
for
the
benefit
of
the
Duke
,
until
his
marriage
,
shows
the
intent
,
for
that
it
can't
be
imagined
that
he
should
be
provided
for
before
his
Marriage
,
and
left
destitute
of
all
Support
after
it
,
unless
he
had
Issue
Male
by
her
.
Nay
,
his
intention
of
Kindness
to
the
Duke
was
proved
further
,
by
giving
him
20000
l.
in
case
she
refused
to
marry
him
,
or
died
before
her
Marriage
.
And
as
to
the
Pretence
of
its
being
a
Condition
precedent
;
it
was
answered
,
That
unless
that
Paragraph
be
made
to
interfere
with
it self
,
the
Duke
will
be
intitled
to
an
Estate
for
Life
,
if
there
were
no
other
Clause
in
the
Deed.
For
first
,
It
's
said
,
That
for
a
more
full
and
ample
provision
for
the
said
Duke
and
his
Wife
,
the
Trustees
,
&c.
Which
words
(
according
to
the
Construction
of
the
Appellant's
Counsel
)
must
be
useless
and
void
,
unless
the
Duke
were
not
after
Marriage
to
have
as
great
,
if
not
greater
Supply
,
then
he
had
before
the
Marriage
.
Then
't
is
said
,
That
they
should
be
seized
in
Trust
for
the
Duke
and
his
Wife
,
and
the
Survivor
of
them
,
for
and
during
their
natural
Lives
,
and
the
Life
of
the
longer
Liver
of
them
.
And
from
thence
't
was
argued
,
That
the
meaning
and
import
of
the
words
(
far
and
during
)
can
be
nothing
less
than
the
whole
Duration
and
Continuance
of
their
Lives
,
from
and
after
Sir
Henry's
Death
and
their
Marriage
.
Then
the
Will
of
Sir
Henry
proves
the
Intention
,
for
that
it
recites
,
That
he
had
settled
from
and
after
his
Decease
,
the
Premisses
in
Trust
for
the
Duke
and
the
said
Mary
during
their
Lives
,
and
the
Life
of
the
longer
Liver
of
them
,
and
takes
no
notice
of
the
pretended
precedent
Condition
;
which
shows
that
he
designed
them
the
Profits
immediately
after
his
Decease
and
the
Marriage
.
Then
in
the
Limitations
over
,
they
are
not
to
take
any
benefit
of
or
by
the
Premisses
,
until
the
death
of
the
Duke
and
his
Wife
without
Issue
;
therefore
it
must
be
understood
,
that
the
Profits
in
the
mean
time
should
remain
to
the
Duke
and
his
Wife
,
or
the
Survivor
of
them
.
And
then
it
was
further
observed
,
That
the
Duke
comes
in
as
a
Purchaser
upon
as
valuable
a
Consideration
as
any
in
the
Law
,
viz.
Marriage
;
and
the
Limitation
over
to
the
Respondent
is
avoluntary
Settlement
.
And
as
to
the
Objection
of
the
Marriage
being
before
Sixteen
,
it
was
not
much
insisted
on
the
other
side
,
and
in
reason
cannot
be
;
because
her
continuing
married
till
after
Sixteen
,
doth
fully
satisfie
the
intent
of
the
Deed
,
in
reference
to
this
Matter
.
And
many
other
Reasons
were
urged
from
the
Intent
of
the
Parties
,
and
the
Nature
of
the
Interest
,
the
same
being
a
Trust
Estate
,
and
proper
for
Equity
to
construe
.
And
upon
the
whole
it
was
pray'd
that
the
Decree
might
be
affirmed
,
but
the
same
was
reversed
.
Sir
Caesar
Wood
alias
Cranmer
,
Versus
Thomas
Webb
.
APpeal
from
a
Decree
in
Chancery
:
The
Case
was
founded
upon
the
next
preceding
;
The
Respondent
was
one
of
the
Coheirs
of
Sir
Henry
Wood
,
and
claimed
a
Moiety
of
the
Profits
of
the
Premisses
during
the
Duke's
Life
,
and
the
same
was
decreed
accordingly
:
And
now
it
was
argued
on
the
behalf
of
the
Appellant
,
That
in
this
Deed
there
was
no
Appointment
to
the
Respondent
,
till
after
the
death
of
the
Appellant
and
his
Issue
;
that
all
the
pretence
for
Webb's
Claim
was
,
That
the
Trust
to
the
Appellant
,
was
not
to
take
effect
till
the
Duke's
death
,
altho'
the
said
Duke
had
no
Interest
in
the
Estate
,
as
hath
been
adjudged
by
the
Supreme
Judicature
of
the
Realm
,
that
by
the
whole
purport
and
design
of
the
Settlement
and
Will
,
and
the
positive
words
of
it
,
Sir
Henry
Wood
intended
the
said
Trusts
in
Succession
and
Order
,
as
they
are
mentioned
;
that
the
Design
of
the
whole
,
was
not
to
give
any
thing
to
the
Respondent
,
till
after
all
the
mediate
Limitations
were
spent
.
It
was
argued
on
the
other
side
with
the
Decree
,
That
this
Right
of
the
Respondent
to
a
Moiety
as
long
as
the
Duke
lives
,
is
a
necessary
Consequence
of
the
Lord's
Judgment
in
the
other
Case
;
that
the
same
is
founded
upon
fixed
and
established
Rules
of
Law
;
as
that
an
Heir
is
not
to
be
disinherited
by
Construction
or
Implication
,
but
by
plain
and
express
words
;
nor
will
the
Law
give
away
an
Estate
,
or
make
it
to
Commence
sooner
than
the
plain
and
express
words
will
warrant
;
that
wherever
an
Estate
is
limited
in
Remainder
,
that
depends
upon
a
Contingency
or
a
Condition
precedent
,
there
,
till
the
Condition
be
performed
or
Contingency
happens
,
that
Estate
cannot
Commence
;
that
this
was
the
foundation
of
the
Argument
for
the
Appeliant
,
in
the
other
Case
:
And
the
same
Rules
hold
here
,
for
here
is
a
precedent
Condition
;
for
after
the
Marriage
once
had
,
the
Duke
must
die
,
and
die
without
Issue
,
or
that
Issue
die
without
Issue
,
before
the
Appellant
can
take
.
The
Owner
says
that
the
Appellant
is
not
to
have
it
till
then
;
that
there
is
not
one
Reason
which
can
be
urged
against
the
Duke
,
but
may
with
equal
force
be
urged
against
the
Appellant
in
this
Case
;
that
the
Respondent
claims
not
by
the
Settlement
,
but
as
a
Coheir
,
to
have
that
which
is
not
disposed
of
;
and
what
is
not
so
disposed
,
must
descend
or
result
for
the
benefit
of
the
Heirs
.
Wherefore
it
was
prayed
that
the
Decree
should
be
affirmed
;
and
it
was
affirmed
.
The
Bishop
of
Exeter
&
al'
,
versus
Sampson
Hele.
Writ
of
Error
upon
a
Judgment
in
a
Quare
Impedit
in
C.
B.
affirmed
in
B.
R.
The
Case
upon
the
Record
was
thus
:
HE
le
brings
his
Quare
Impedit
,
as
seized
of
the
Mannor
of
Southpole
in
Com'
Devon
'
,
to
which
the
Advowson
of
the
Church
of
Southpole
belongs
in
his
Demesne
,
as
of
Fee
,
and
so
being
seized
,
he
presented
thereunto
,
when
vacant
,
John
Vlt.
his
Clerk
,
who
at
his
Presentation
was
admitted
and
instituted
;
that
it
became
void
by
his
death
,
and
belonged
to
him
to
present
;
and
that
the
said
Bishop
and
Gau●yn
Hayman
hinder
him
ad
dampn'
&c.
The
Defendants
came
and
defend
vim
&
injur'
quando
,
&c.
and
the
Bishop
says
,
Actio
'
non
,
quia
dieit
,
that
the
Church
is
within
his
Diocess
,
and
that
he
claims
nothing
in
it
but
as
Ordinary
;
that
't
is
a
Benefice
with
Cure
of
Souls
;
that
15
Aprilis
,
Anno
Willielmi
&
Mariae
secundo
,
it
became
void
by
the
said
Incumbent's
death
,
he
being
Ordinary
,
after
which
Vacancy
,
and
within
Six
Months
prox'
post
mortem
praed'
J.
V.
viz.
19
May
,
eodem
Anno
,
the
Plaintiff
presented
to
him
one
Francis
Hodder
as
his
Clerk
,
which
said
Francis
was
a
Person
in
Literatura
minus
sufficiens
sen
capax
ad
habend'
dictam
Ecclesiam
.
Super
quo
praed'
Episc
'
as
Ordinary
of
the
Church
aforesaid
,
did
according
to
the
Ecclesiastical
Laws
Examine
him
of
his
Ability
and
Fitness
in
that
behalf
,
ut
de
jure
debuit
,
and
upon
such
Examination
,
he
found
him
to
be
a
Person
,
in
Literatura
insufficient'
ac
ea
ratione
fore
personam
inhabil'
&
minime
idoneam
ad
habend
'
the
said
Benefice
with
Cure
of
Souls
,
per
quod
,
the
said
Bishop
as
Ordinary
did
refuse
him
;
of
which
,
after
the
said
Refusal
,
the
Bishop
within
the
six
Months
,
did
give
the
Plaintiff
notice
,
viz.
20th
June
,
Anno
supradict
'
and
that
he
might
present
another
Person
to
the
said
Church
,
that
the
Plaintiff
did
not
present
any
other
within
the
six
Months
,
per
quod
,
it
belonged
to
the
Bishop
as
Ordinary
of
the
place
,
to
Collate
a
fit
and
proper
Person
;
and
thereupon
,
he
did
Collate
Gauwin
Hayman
,
who
was
instituted
and
inducted
,
&
hoc
parat'
est
verificare
unde
pet'
Jud
'
&c.
The
Incumbent
pleads
the
same
Plea
,
Mutatis
mutandis
.
The
Plaintiff
replies
,
That
Hodder
at
the
time
of
the
Presentation
,
and
long
before
,
was
,
Vicar
of
the
Parochial
Church
of
Vxborough
,
in
Com'
praed
'
;
and
to
that
Vicaridge
,
lawfully
admitted
,
instituted
,
and
inducted
,
&
homo
Literatus
infra
Sacros
ordines
constitut'
&
in
verbo
Dom'
Doct'
&
instruct'
&
post
Doctrine
&
Literat'
examen
ordines
Sacerdotales
per
ordination'
Episcopalem
adeptus
fuit
&
intuitu
Spiritualis
Doni
&
favente
Deo
in
ea
parte
contingent'
ad
predicand'
verbum
Dei
in
&
per
Diocesim
Exon
,
by
Anthony
late
Lord
Bishop
of
Exon
,
Licentiat'
curam
;
habens
&
exercens
Animar'
&
Divino
Servitio
per
multos
Annos
assidue
incumbent
&
Divinum
Servitium
Celebravit
&
adhuc
Celebrat
,
&
ad
Divina
Servitia
Celebrand
'
Scil'
in
legendo
Orando
,
Praedicando
&
Sacra
Ministeria
ministrand'
Satis
&
Sufficienter
Literatus
vixit
apud
Southpole
praed'
&
hor'
par'
est
ver'
unde
petit
Jud
'
&c.
The
Defendants
rejoyn
,
That
protestando
,
that
Hodder
was
never
Vicar
of
Vxborough
,
nor
in
Orders
,
nor
Licensed
to
Preach
,
pro
placito
;
they
say
,
that
Hodder
when
Presented
,
was
a
Man
illiterate
,
and
that
they
are
ready
to
aver
,
ubi
&
quando
prout
curia
,
&c.
The
Plaintiff
surjoyns
,
That
Hodder
was
Vicar
,
in
Orders
,
and
Licensed
,
prout
,
&
hoe
petit
quod
inquiratur
per
patriam
,
and
the
Defendant's
Demur
,
&
Jud
'
pro
quer'
&
affirme
en
B.
R.
It
was
argued
on
behalf
of
the
Plaintiffs
,
in
the
Writ
of
Error
,
that
this
Judgment
and
the
affirmance
of
it
were
Erroneous
.
For
,
That
the
Ordinary
had
in
this
Case
,
a
Power
of
examining
this
Presentee
,
notwithstanding
their
pretence
of
Orders
and
License
,
and
the
former
Examination
by
Dr.
Sparrow
,
late
Bishop
,
and
consequently
their
Replication
and
Surrejoynder
are
naught
,
for
they
rely
upon
that
and
nothing
else
.
'T
was
insisted
on
below
,
That
a
Parson
once
Ordained
,
is
certainly
presumed
to
have
sufficient
Learning
for
any
Cure
of
Souls
;
nay
,
that
such
Examination
upon
his
Ordination
,
shall
conclude
any
succeeding
or
other
Ordinary
from
Examining
such
a
Person
when
Presented
to
a
Benefice
,
but
this
is
contrary
both
to
Reason
and
Law
,
and
so
agreed
by
most
of
the
Judges
,
who
delivered
their
Opinions
for
the
Plaintiff
in
the
Action
below
.
'T
is
against
all
Reason
and
Sense
,
That
because
one
Ordinary
thought
him
able
to
take
Orders
and
Preach
in
his
Diocess
,
therefore
,
another
must
deem
him
able
and
sufficiently
Learned
(
tho'
he
knows
the
contrary
)
to
accept
a
Benefice
in
his
Diocess
;
't
is
Absurd
,
that
upon
a
Presentation
,
he
is
to
be
Examined
,
but
not
refused
,
tho'
found
inhabilis
,
and
this
because
he
was
in
Orders
,
and
he
could
not
be
Presented
unless
in
Orders
,
and
yet
tho'
in
Orders
,
if
he
be
Presented
,
he
must
be
Examined
,
but
to
what
purpose
,
passeth
all
understanding
,
if
his
Priesthood
or
Orders
presumes
him
to
be
qualified
!
'T
is
likewise
to
suppose
Learning
and
Ability
to
be
an
inseparable
quality
;
That
an
ordinary
Scholar
can
never
become
less
so
.
By
the
Old
Law
,
the
Bishop
had
two
Months
time
to
Examine
,
2
Roll's
Abr.
354.
by
Hob.
317.
He
hath
a
convenient
time
,
and
by
Can.
1
Jac.
1
cap.
95.
the
two
Months
is
reduced
to
28
Days
:
And
the
Ordinary
both
in
Conscience
and
by
the
Obligations
which
his
very
Order
doth
import
,
is
obliged
to
Judge
for
himself
as
well
as
to
Examine
;
the
contrary
is
repugnant
to
his
Office
of
a
Judge
,
to
be
forced
or
compelled
to
institute
every
Presentee
,
fit
or
unfit
:
Besides
the
Ordinary
pro
Tempore
hath
the
particular
care
of
all
the
Diocess
,
and
during
a
vacancy
,
is
to
take
care
of
supplying
every
particular
Cure
within
his
District
;
then
when
he
admits
and
institutes
,
the
very
form
of
Words
,
is
,
Accipe
curam
meam
&
tuam
,
which
renders
it
more
Absurd
,
that
nolens
volens
,
he
must
transfer
his
Cure
to
a
Man
not
able
in
his
Judgment
to
execute
it
.
'T
is
against
the
Rule
of
Law
,
for
that
the
Words
of
it
are
express
,
articuli
Cleri
,
cap.
13.
and
this
Cooke
declares
to
be
Affirmative
of
the
Common-Law
;
Item
petitur
quod
personae
Ecclesiast'
quas
Dominus
Rex
ad
beneficia
presentet
Ecclesiastica
si
Episcopus
eas
non
Admittat
ut
puta
propter
defectum
Scientiae
,
vel
aliam
causam
rationabilem
,
non
Subeant
examinationem
Laicar'
personar'
in
casibus
antedictis
prout
his
temporibus
attentetur
de
facto
,
contra
Canonitas
sanctiones
,
sed
adeant
Judicem
Ecclesiasticum
ad
quem
de
jure
pertinet
pro
Remedio
prout
justum
fuerit
consequendo
respons'
de
Idonietate
persone
presentate
ad
beneficium
Ecclesiasticum
pertinet
Examinatio
ad
Judicem
Ecclesiasticum
&
ita
est
hactenus
usitatum
&
fiat
in
futurum
.
Here
is
Idoneitas
persone
praesentate
;
and
the
words
of
the
Writ
,
are
quod
permittat
praesentare
Idoneam
personam
.
And
if
the
Presentee
were
not
a
fit
person
,
no
such
Writ
can
be
maintained
.
Then
my
Lord
Coke
in
his
Comment
upon
that
Statute
in
2
Inst.
631
,
632.
saith
,
that
there
may
be
diverse
Exceptions
to
Persons
presented
as
Bastardy
,
Villenage
,
Outlawry
,
Excommunication
,
Laity
,
Under
age
,
or
Criminal
and
Lewd
in
his
Conversation
,
or
inability
to
discharge
his
Pastoral
duty
,
as
if
he
be
Unlearned
;
and
the
Examination
of
the
Ability
and
Sufficiency
of
the
Person
presented
,
belongs
to
the
Bishop
,
who
is
the
Ecclesiastical
Judge
,
and
not
a
Minister
,
and
may
and
ought
to
refuse
the
Person
presented
;
if
he
be
not
Idonea
persona
:
And
if
the
cause
of
refusal
,
be
default
of
Learning
,
Heresie
or
the
like
,
belonging
to
the
knowledge
of
the
Ecclesiastical
Law
;
then
he
must
give
notice
to
the
Patron
,
so
that
default
of
Learning
,
is
by
him
(
who
was
no
great
friend
to
the
Jurisdiction
of
Court
Christian
)
agreed
to
be
Subject
to
the
Ecclesiastical
inquiry
,
and
then
in
Pleading
,
he
must
show
the
cause
of
refusal
,
and
the
Party
may
deny
the
same
,
and
then
the
Court
shall
write
to
the
Metropolitan
,
or
to
the
Guardian
of
the
Spiritualities
,
sede
vacante
,
to
certifie
if
the
cause
be
thus
,
and
his
Certificate
is
conclusive
;
if
the
Presentee
be
Dead
,
it
shall
be
tried
by
a
Jury
,
15
Hen.
7.7
.
the
Bishop
is
declared
to
be
a
Judge
,
and
not
a
Minister
in
this
case
of
Examining
a
Man's
Ability
;
he
is
a
Judge
in
this
case
as
he
is
in
case
of
a
Resignation
;
for
an
Ordinary
may
refuse
it
,
and
without
his
acceptance
,
't
is
no
Resignation
,
and
must
be
so
Pleaded
,
Noy
.
147.
Bro.
tit
Bar.
81.
&
2.
Cro.
197.
and
so
agreed
,
even
in
the
Case
of
Leach
and
Thompson
,
in
Reg.
53.
is
a
Consultation
upon
this
very
surmise
that
inability
,
ad
Retinend'
beneficium
propter
Crimina
,
belongs
to
Court
Christian
,
and
that
the
Ordinary
is
Judge
thereof
,
which
is
much
stronger
than
our
case
,
because
there
was
a
Freehold
vested
by
induction
.
But
this
hath
been
agreed
by
that
Court
from
whose
Judgment
the
present
Appeal
is
,
that
a
refusal
may
be
upon
insufficiency
,
appearing
upon
an
Examination
,
upon
a
new
Presentation
;
and
constant
practise
proves
it
.
The
greater
if
any
doubt
is
upon
the
Plea
,
if
good
,
it
says
,
that
he
was
Examined
,
and
upon
Examination
,
was
found
incapable
.
The
Exception
taken
to
it
,
is
,
that
it
doth
not
set
forth
the
particular
parts
of
Learning
,
in
which
he
is
deficient
,
that
the
Temporal
Court
may
Judge
,
if
it
were
a
sufficient
cause
of
refusal
,
which
is
to
change
and
turn
it
,
ad
aliud
examen
,
that
Learning
is
requisite
for
a
Presentee
to
be
Benefic'd
;
they
would
not
have
the
Ordinary
to
determine
what
Qualifications
a
person
ought
to
have
in
order
to
take
a
Benefice
,
but
the
Judges
in
Westminster-Hall
:
They
can
have
no
colour
for
this
pretence
,
but
that
the
Ordinary
may
have
refused
,
when
competently
Learned
in
their
Opinions
,
and
they
cannot
say
that
the
Law
hath
settled
any
Rules
or
measures
of
Learning
requisite
.
Some
say
,
Latin
is
not
requisite
since
the
Liturgy
is
now
in
English
,
and
therefore
they
would
Judge
of
it
;
others
say
,
the
less
Learning
the
better
Preacher
,
if
can
Read
,
and
Pray
,
and
Preach
,
and
be
indued
with
Spiritual
Gifts
,
and
so
is
their
Replication
;
others
say
,
that
the
Ordinary's
Judgment
must
be
submitted
to
the
Judge's
Opinion
of
the
proportion
of
Knowledge
necessary
;
then
they
have
a
Popular
pretence
,
that
this
will
give
the
Bishops
too
great
a
Power
of
refusal
,
and
so
restrain
Patrons
from
their
privilege
of
Presenting
,
and
thereby
make
themselves
Collators
:
But
,
there
's
no
danger
of
that
,
because
there
must
be
notice
and
a
convenient
time
for
another
Presentation
,
and
the
danger
of
this
restraint
,
is
as
much
the
other
way
,
for
then
the
Temporal
Courts
are
to
do
it
,
and
it
s
much
at
one
to
the
Patron
,
which
is
to
declare
the
inability
,
the
Ordinary
or
the
Temporal
Courts
:
On
both
sides
,
it
must
be
agreed
,
that
default
of
Literature
,
is
a
good
and
just
cause
of
refusal
,
the
Question
is
,
who
shall
judge
of
it
;
it
is
said
,
minus
Sufficiens
in
Literatura
&
ca
ratione
inhabilis
,
i.e.
(
it
being
indefinite
)
in
omni
Literatura
necessaria
.
But
,
they
Cavil
at
the
Word
minus
sufficiens
,
as
if
that
agreed
him
somewhat
Learned
,
and
forget
that
't
is
said
,
ac
perinde
incapax
:
And
,
minus
sufficiens
is
in
Lawyer
's
Latin
,
totally
insufficient
,
and
so
't
is
used
in
all
Demurrers
to
Declarations
,
Pleas
,
Replications
,
quod
Narr'
vel
placit'
pred'
&
Materia
in
eodem
content'
minus
sufficient'
in
Lege
existunt
ad
quam
vel
quod
,
the
party
,
necesse
non
habet
nec
per
Legem
terrae
Tenetur
aliquo
modo
respondere
;
i.
e.
't
is
good
for
nothing
,
't
is
insufficient
;
the
Court
in
their
Judgments
upon
the
insufficiency
of
the
Plea
,
do
always
say
,
quia
minus
sufficien'
existit
.
Then
it
was
argued
,
That
it
is
a
good
Plea
to
all
intents
and
purposes
,
from
the
nature
of
the
thing
,
and
the
impossibility
of
making
it
more
particular
and
certain
.
2.
From
the
sufficiency
of
it
to
all
intents
and
purposes
of
Tryal
.
3.
From
the
Precedents
and
those
of
Antiquity
which
warrant
this
form
of
pleading
.
4.
From
the
mischiefs
and
inconveniencies
which
must
follow
and
ensue
,
if
a
greater
particularity
were
required
.
1.
From
the
nature
of
the
thing
,
and
the
impossibility
of
making
it
more
particular
and
certain
;
if
the
Bishop
were
bound
to
set
down
in
particular
,
and
at
large
,
every
point
of
Learning
wherein
this
poor
wretch
was
and
is
deficient
,
't
would
be
a
Pleading
like
to
a
justification
of
an
Action
done
by
a
private
Person
,
and
not
like
to
the
Pleading
of
the
Act
of
a
Judge
,
which
this
is
;
't
would
be
so
large
as
to
render
it
impossible
for
to
joyn
an
Issue
thereupon
;
and
then
they
would
have
demurred
with
a
Cause
,
because
multiplex
duplex
incertum
&
perplex'
,
and
the
rest
of
our
usual
Adjectives
upon
those
occasions
;
the
Assignment
of
several
and
many
particulars
would
have
been
double
,
and
good
cause
of
Exception
,
because
one
particular
might
be
found
true
and
another
not
,
and
the
Assignment
of
one
particular
would
have
been
adjudged
insufficient
,
for
then
they
would
have
said
that
Learning
is
of
a
Complex
nature
,
and
if
a
Man
should
fail
in
answering
any
one
particular
,
tho'
common
Question
,
yet
he
might
be
qualified
in
general
:
And
therefore
the
Assignment
of
one
defect
,
tho'
never
so
gross
,
shall
not
make
a
Clerk
,
minime
capax
,
and
therefore
no
good
Plea
:
For
,
if
a
particular
be
Assigned
,
that
would
not
prove
a
general
Defect
of
knowledge
,
according
to
the
words
of
the
Law
;
which
is
the
only
thing
that
could
make
him
incapable
,
ad
habend'
beneficium
cum
Curia
Animar
'
and
therefore
the
Bishop
as
a
Judge
,
returns
him
in
literatura
insufficiens
&
ea
de
causa
minime
capax
,
and
the
special
instances
would
have
been
Evidences
upon
a
new
Tryal
,
or
Examination
before
the
Arch-Bishop
.
Now
this
cause
of
refusal
,
distinguishes
the
case
from
all
others
,
that
they
can
insist
upon
;
all
other
inabilities
of
a
Clerk
depend
upon
one
single
point
,
as
Bastardy
,
Villenage
,
Outlawry
,
Excommunication
,
Lay-man
,
Under-age
,
or
Ecclesiastical
Infancy
:
So
all
Crimes
must
have
their
foundation
from
a
particular
Act
,
as
Adultery
,
Perjury
,
Simony
,
&c.
In
these
it
shall
not
be
enough
to
Plead
that
he
was
inhabilis
generally
,
or
criminosus
,
generally
&
ideo
inhabilis
,
because
no
body
can
be
criminosus
,
but
he
that
hath
done
some
particular
Crime
,
and
that
is
to
have
a
several
Tryal
according
to
its
respective
nature
;
if
it
be
an
Ecclesiastical
Offence
,
then
there
is
a
particular
method
of
Tryal
;
if
a
Temporal
,
then
another
,
and
so
says
Coke
,
2
Inst.
632.
and
therefore
a
particularity
is
required
there
,
but
here
't
is
all
tryable
by
the
same
way
,
viz.
a
new
Examination
before
the
Arch-Bishop
:
Here
the
matter
it self
admits
of
no
greater
certainty
;
for
that
't
is
a
general
deficiency
of
Learning
only
,
which
can
make
an
incapacity
of
discharging
the
Pastoral
Office
;
it
is
a
matter
that
must
appear
by
a
variety
of
Questions
,
and
cannot
be
proved
by
any
one
single
instance
whatsoever
.
This
is
the
true
reason
and
difference
why
in
several
Cases
general
Pleading
hath
been
denied
,
and
why
in
this
Case
it
hath
been
always
used
,
and
never
excepted
against
.
Then
it
was
argued
,
That
this
Plea
was
sufficient
to
all
the
intents
and
purposes
of
Tryal
and
Determination
.
By
our
Law
that
Plea
is
sufficiently
certain
,
which
may
be
Tryed
without
inveigling
either
Court
or
Jury
,
that
is
,
it
must
be
intelligible
and
plain
;
and
this
surely
is
plain
enough
,
the
Ordinary
had
a
Power
to
refuse
him
,
for
want
of
Learning
,
sufficient
to
enable
him
to
discharge
his
Pastoral
Office
;
he
Pleads
that
he
was
Minus
sufficien'
in
Literatura
;
this
is
to
be
tried
by
the
Certificate
of
the
Arch-Bishop
,
or
the
Guardian
of
the
Spiritualities
,
during
a
vacancy
and
that
is
evident
,
by
39
Edw.
3.1
,
2.
40
Edw.
3.25
.
and
from
Speccot's
Case
,
5
Rep.
7.
There
never
was
an
Objection
made
to
the
uncertainty
of
any
Plea
,
if
the
Matter
could
be
fairly
reduced
to
an
Issue
for
a
Trial
;
now
here
the
Court
might
certainly
have
written
to
the
Archbishop
to
have
known
utrum
this
Creature
,
were
minus
sufficiens
in
Literatura
&
ea
Ratione
inhabilis
,
and
the
actus
Curiae
of
the
Bishop
would
have
been
Evidence
before
his
Grace
,
and
he
might
have
certified
that
he
was
,
or
that
he
was
not
sufficiently
Learned
:
No
,
say
they
,
the
Court
must
not
write
to
the
Archbishop
to
know
that
,
till
it
be
said
in
what
Points
of
Learning
he
was
defective
;
and
if
these
shall
be
thought
material
Parts
of
Learning
for
a
Rector
,
then
they
must
write
to
know
if
Hodder
had
them
or
not
;
but
if
they
think
them
not
material
for
the
Qualifications
of
a
Pastor
,
they
must
not
write
at
all
:
This
is
the
true
English
of
the
Argument
.
But
it
was
argued
,
That
the
Temporal
Court
is
only
to
judge
,
that
the
Cause
of
Refusal
,
if
true
,
was
a
sufficient
Cause
;
and
the
Books
are
,
that
a
general
default
of
Learning
is
a
good
Cause
;
and
this
the
Archbishop
is
to
try
:
And
this
is
certain
enough
for
to
make
an
Issue
or
Question
proper
for
that
Trial.
Besides
,
A
greater
Latitude
and
Generality
hath
of
late
been
allowed
in
pleading
of
Proceedings
in
Courts
,
and
before
Judges
,
then
formerly
.
In
ancient
days
,
if
a
Man
pleaded
a
Judgment
in
a
Court
in
Westminster-hall
,
they
set
forth
the
whole
;
then
they
came
to
allow
of
a
taliter
fuit
processum
,
and
an
Abridgment
of
the
Proceedings
;
then
came
a
Recuperavit
only
:
And
this
was
because
that
all
Proceedings
in
the
Superiour
Courts
were
to
be
presumed
regular
,
till
the
contrary
were
shewn
:
But
this
was
denied
a
long
while
to
Inferiour
Courts
,
because
these
were
tied
to
stricter
forms
,
and
therefore
were
still
forced
to
set
forth
the
whole
;
then
they
allowed
a
taliter
fuit
processum
for
them
,
provided
still
they
were
Courts
of
Record
:
But
now
they
allow
it
in
pleading
of
a
Justification
upon
a
Recovery
in
an
Hundred
Court
,
because
the
whole
must
be
given
in
Evidence
;
so
that
such
a
formal
Nicety
in
Pleading
is
not
generally
required
now
as
was
formerly
.
Besides
,
In
Matters
triable
by
the
Spiritual
Law
,
there
is
always
less
particularity
required
in
Pleading
,
then
in
others
triable
in
Courts
Temporal
,
as
in
Bastardy
,
Divorce
,
Deposition
,
Literature
,
Profession
,
and
the
like
:
It
's
enough
if
so
much
be
alledged
,
that
they
may
write
to
know
whether
the
Fact
be
so
or
no
;
and
upon
a
Return
thereof
that
't
is
so
,
they
can
give
Judgment
.
Now
if
his
Grace
my
Lord
Archbishop
,
in
this
Case
,
upon
Examination
had
returned
that
this
Presentee
was
in
Literatura
minus
sufficiens
,
as
undoubtedly
he
would
,
(
and
so
the
Plaintiff
thought
,
otherwise
he
would
have
joyned
Issue
)
and
so
ea
occasione
inhabilis
,
then
unquestionably
Judgment
must
have
been
for
the
Plaintiff
in
Error
;
for
default
of
Learning
is
a
good
cause
of
Refusal
,
and
must
be
agreed
to
be
so
.
The
Rule
laid
down
by
my
Lord
Anderson
,
3
Leon.
200.
is
,
That
in
Matters
triable
by
our
Law
,
all
things
issuable
ought
to
be
specially
alledged
,
in
order
to
have
a
convenient
Trial
;
but
in
Matters
Spiritual
the
Law
is
otherwise
,
because
there
's
no
peril
in
the
Trial
;
and
therefore
if
certain
enough
to
ground
a
Certificate
it
's
sufficient
.
My
Lord
Hob.
296.
in
Slade
and
Drake's
Case
,
saith
,
That
in
pleading
a
Divorce
,
you
must
shew
before
whom
it
was
,
11
Hen.
7.27
.
but
you
need
not
shew
all
the
Proceedings
as
you
should
of
a
Recovery
at
Common
Law
;
and
the
Reason
why
you
must
shew
before
whom
,
is
only
that
it
may
be
known
,
who
is
to
try
and
certifie
it
.
In
Burdell's
Case
18
Edw.
4.29
,
30.
't
is
clear
that
in
all
Spiritual
Acts
triable
by
the
Spiritual
Law
,
it
is
necessary
to
plead
no
more
than
what
may
give
the
Court
ground
to
write
to
the
proper
Ecclesiastical
Officer
,
and
to
judge
by
his
Certificate
.
Now
here
is
ground
enough
in
this
Case
for
the
Archbishop
to
examine
this
ignorant
Person
,
for
so
he
must
be
taken
to
be
;
for
so
he
is
found
by
one
Ordinary
,
and
he
refuses
to
be
examined
by
the
Archbishop
:
he
is
pleaded
not
to
have
Learning
enough
to
capacitate
him
for
a
Cure
of
Souls
,
and
that
by
one
whom
the
Law
hath
constituted
his
Judge
:
'T
is
true
,
this
is
traversable
and
triable
by
the
Archbishop
,
but
all
those
Instances
of
his
Insufficiency
that
were
taken
in
the
Bishops
Court
,
would
be
Evidences
of
the
same
before
the
Archbishop
,
proceeding
in
an
Ecclesiastical
manner
,
tho'
not
so
proper
,
tho'
not
possible
to
be
set
forth
in
the
Temporal
Court
;
this
is
not
a
General
Return
of
a
Person
inhabilis
,
which
might
occasion
an
Enquiry
into
all
sort
of
Disabilities
;
but
a
Special
Plea
of
inhabilis
,
quia
insufficienter
Literatus
;
and
therefore
no
further
Enquiry
is
necessary
,
then
into
the
Learning
of
the
Party
,
as
Capacitates
him
for
a
Rector
.
It
was
in
the
third
place
argued
from
the
Presidents
of
Pleading
in
this
Case
,
and
other
Cases
of
Pleading
upon
like
Occasions
,
and
those
both
Ancient
and
Modern
.
40
Edw.
3.25
.
In
a
Quare
Impedit
(
as
this
is
)
the
Bishop
pleads
as
here
,
That
he
Examined
the
Clerk
presented
,
and
found
upon
Examination
que
il
ne
fuit
sufficiens
Letter'd
,
and
thereupon
alledges
Notice
to
the
Patron
,
&
per
lapsum
temporis
,
he
justifies
his
own
Presentation
:
Upon
this
,
there
's
no
dispute
but
that
thus
far
it
was
well
pleaded
;
but
the
only
doubt
was
,
whether
the
words
,
and
so
disabled
,
should
be
added
to
the
Issue
?
and
they
were
ordered
to
be
part
of
the
Issue
in
that
Case
,
and
so
they
ought
to
be
in
this
Case
,
and
so
they
are
&
ea
ratione
inhabilis
;
this
Case
is
exactly
parallel
to
that
in
question
;
and
upon
this
Plea
there
was
Issue
joyned
,
and
the
Trial
was
directed
to
be
by
the
Guardian
of
the
Spiritualities
,
vacante
Sede
Cantuariensi
,
nothing
can
be
offered
against
this
,
only
that
't
is
Ancient
,
and
the
Law
is
changed
,
but
by
what
Authority
is
hard
to
know
;
there
is
no
Act
of
the
Legislature
to
alter
it
:
much
hath
been
done
to
help
against
Niceties
in
Pleading
;
nothing
to
require
more
.
And
Bro.
Quare
Impedit
168.
they
were
compelled
to
joyn
Issue
,
able
or
not
able
,
in
that
respect
.
39
Edw.
3.1
&
2.
The
Earl
of
Arundel
versus
the
Bishop
of
Chester
,
says
the
Book
,
tho'
it
appears
plainly
to
be
a
mis-print
,
from
the
name
of
the
Church
,
and
the
Trial
per
pais
,
and
the
Antiquity
of
the
Bishoprick
it self
,
it
must
be
the
same
,
that
in
the
Abridgments
is
called
the
Earl
of
Arundel
versus
the
Bishop
of
Exeter
,
the
Bishop
pleads
as
here
,
That
he
examined
the
Clerk
presented
,
and
found
him
persona
inhabilis
,
to
have
a
Benefice
in
the
Church
;
and
Issue
is
joyned
upon
that
which
is
stronger
then
ours
,
and
a
Trial
by
Jury
is
directed
out
of
the
County
of
Cornwall
,
because
the
Clerk
was
dead
.
Here
are
two
Cases
in
which
all
the
different
Trials
are
taken
that
can
be
had
by
the
Guardian
where
the
Presentee
was
living
,
and
by
Jury
when
dead
,
because
he
could
not
be
examined
:
And
in
both
these
Cases
Issue
is
taken
upon
this
Plea
,
and
that
in
great
Cases
,
and
after
long
Debate
.
And
,
according
to
the
Lord
Coke
,
in
this
Reign
the
Law
was
pure
and
uncorrupt
,
and
flourished
.
Then
were
urged
Modern
Precedents
,
Mich.
15
&
16
Eliz.
Rot.
1941.
Molineux
versus
Archiepiscopar'
Ebor
'
in
a
Quare
Impedit
,
in
which
the
Plea
of
the
Archbishop
is
the
same
in
totidem
verbis
,
as
here
,
Persona
in
Literatura
minus
sufficiens
,
seu
habilis
ad
habend'
praed'
Ecclesiam
,
and
there
is
no
Exception
taken
to
the
Plea
,
but
only
Issue
joyned
upon
notice
,
or
no
notice
,
before
the
Lord
Chief
Justice
Dyer
.
Another
Precedent
there
is
Hill.
6
Eliz.
Rot.
646.
Bodenham
versus
Episcopor'
Hereford'
,
there
is
the
same
Plea
in
Bar
as
here
,
That
the
Person
presented
was
Persona
in
Literatura
minus
sufficiens
seu
habilis
ad
habend'
aliquod
Beneficium
Sanctae
Ecclesiae
,
and
then
avers
notice
to
the
Patron
:
and
no
Exception
taken
to
the
Plea
,
but
Issue
upon
notice
.
Pasch.
6
Eliz.
Rot.
714.
Paschall
versus
Episcop'
Lond'
Quare
Impedit
,
the
Ordinary
pleads
an
Examination
de
habilitate
,
honestate
&
doctrina
ejus
;
&
pro
eo
quod
idem
Episcopus
invenit
praed'
Christopherum
fore
criminosum
,
&
de
non
sana
Doctrina
ideo
recusavit
and
notice
;
and
even
to
that
general
Plea
there
's
no
Demurrer
,
but
Issue
upon
notice
.
'T
is
no
Answer
,
that
here
was
no
Solemn
Judgment
upon
this
very
Point
,
for
it
doth
rather
inforce
the
Authority
of
the
Precedents
;
it
argues
that
the
Law
was
taken
to
be
so
clear
for
the
validity
of
this
Plea
,
that
no
Lawyer
would
venture
upon
a
Demurrer
,
but
rather
would
trust
to
a
Jury
upon
the
Evidence
of
notice
,
it
argues
it
so
constant
a
Course
and
Method
of
Pleading
in
these
Cases
,
that
none
was
so
hardy
as
to
dispute
it
.
38
Edw.
3.2
.
Perjurius
was
alledged
by
the
Bishop
in
the
Presentee
,
and
held
to
be
well
enough
,
but
nothing
of
manner
,
time
and
place
,
nor
any
Conviction
of
it
mentioned
,
and
yet
this
was
admitted
a
good
Plea
,
2
Rolls
Abridg.
Presentment
356.
and
so
says
Rolls
,
it
shall
be
,
tho'
in
a
Suit
between
the
Ordinary
himself
and
another
,
Dyer
293.
't
is
cited
Bro.
Quare
Impedit
170.
Justice
Rhodes
3
Leon.
100.
vouched
a
Case
in
30
Edw.
1.
out
of
a
Manuscript
of
the
Lord
Catlins
,
wherein
upon
a
Quare
non
Admisit
,
the
Defendant
pleaded
that
the
Presentee
was
Schismaticus
&
Adulter
,
and
the
Court
commanded
that
he
should
hold
to
one
or
other
of
them
,
for
which
he
said
Adulter
;
from
hence
't
is
manifest
,
that
the
Court
did
not
dislike
the
Plea
for
the
generality
,
but
the
doubleness
.
And
then
it
was
said
,
That
after
all
these
Presidents
on
this
side
,
and
many
others
which
might
be
Cited
of
the
like
generality
in
other
cases
,
't
will
be
difficult
to
shew
one
single
Instance
or
Case
in
which
this
matter
of
general
defect
of
Learning
was
ever
pleaded
otherwise
,
or
any
one
Judgment
against
any
Bishop
whatever
,
upon
such
a
Plea
;
for
tho'
in
some
Cases
,
which
they
say
are
parallel
and
similar
,
tho'
in
truth
they
are
not
,
as
Criminosus
and
Schismaticus
hath
been
adjudged
too
general
,
yet
this
Plea
of
Minima
in
Literatura
sufficiens
ac
ea
ratione
incapax
,
as
it
has
always
been
used
,
without
alteration
of
words
,
so
has
it
never
yet
been
excepted
against
,
and
in
these
Presidents
of
Edw.
3.
before
cited
,
hath
been
thought
good
,
and
Issue
joyned
thereupon
.
This
was
the
ancient
form
of
Pleading
,
and
(
as
all
those
ancient
Pleas
were
)
founded
upon
Reason
,
being
such
as
the
Subject
Matter
is
capable
of
.
In
the
Case
of
a
Coroner
it
's
a
good
Cause
to
remove
him
,
quia
fuit
minime
idoneus
ad
exequendum
officium
istud
,
and
no
charge
of
any
particular
insufficiency
assigned
,
Fitzh
.
Nat.
Brev.
163.
and
there
is
no
question
but
that
't
would
be
a
good
Cause
,
and
sufficiently
certain
,
in
a
Scire
Facias
to
repeal
,
vacate
,
or
cancel
Letters
Patents
for
an
Office
in
the
Law
,
to
say
in
Legibus
hujus
Regnt
Angliae
minus
sufficient'
instructus
,
without
assigning
any
particular
Case
or
Statute
that
a
Man
blundered
at
,
or
was
ignorant
in
.
Suppose
an
Office
in
the
Law
,
to
which
the
King
or
a
private
Person
hath
the
Nomination
,
and
the
Court
refuses
to
admit
a
Man
so
named
,
and
an
Action
brought
for
that
Refusal
,
&c.
would
it
not
be
a
good
Plea
to
say
the
Party
was
minus
sufficiens
in
Scientia
Legum
&
ea
Ratione
inhabilis
;
and
particular
Instances
are
Evidences
.
This
is
in
the
Negative
,
like
a
non
fuit
dampnificatus
,
and
there
you
never
need
to
shew
how
;
unless
't
were
a
particular
Incumbrance
at
the
time
of
the
Contract
;
otherwise
't
is
always
a
good
Plea
.
In
Non
Compos
't
is
never
shewn
in
particular
wherein
,
or
what
Feats
of
Frenzy
;
Non
compos
implies
that
he
had
a
general
Defect
,
disabling
him
at
that
time
to
do
an
Act
obligatory
and
valid
;
and
that
resembles
this
,
for
you
need
not
shew
wherein
;
but
the
Particulars
are
Evidence
.
The
Reason
of
the
thing
proves
the
Convenience
and
Solidity
of
the
distinction
between
Pleading
a
Negative
and
Affirmative
:
For
instance
in
this
Case
,
the
Negative
pleaded
implies
an
entire
denial
of
sufficient
Learning
to
qualifie
him
for
a
Cure
of
Souls
,
and
that
justifies
the
Ordinary
;
and
our
Law
Books
are
full
of
this
Distinction
;
Mode
and
other
Circumstances
of
Quality
,
Time
,
and
Place
,
are
requisite
in
Affirmative
Pleas
,
none
of
which
are
necessary
in
Negatives
.
There
might
be
cited
infinite
numbers
of
Cases
to
that
purpose
,
as
Mauser's
Case
2
Rep.
4.
Broughton's
Case
5
Rep.
24.
Aston
and
Hill
3
Cro.
253.
Hutchinson
versus
Lowson
,
3
Cro.
393.
Wild
and
Dowse
,
Latch
.
159.
And
as
the
Foundation
of
all
those
,
is
the
40
Edw.
3.30
.
which
is
the
ground
of
all
these
,
and
many
more
subsequent
Authorities
to
the
like
effect
:
But
besides
,
there
's
one
modern
Case
,
't
is
Church
versus
Brunswick
,
Sid.
334.
Bond
to
pay
from
time
to
time
a
Moiety
of
all
such
Moneys
as
from
time
to
time
he
should
receive
;
and
payment
of
a
Moiety
generally
,
without
shewing
the
particulars
in
certain
,
was
held
a
good
Plea
;
and
the
reason
of
that
Judgment
maintains
the
Rule
now
contended
for
,
which
was
,
because
't
is
of
what
he
should
receive
from
time
to
time
;
otherwise
if
those
words
had
been
omitted
;
because
in
that
Case
there
would
be
a
stuffing
of
the
Rolls
with
a
multiplicity
of
Particulars
;
and
the
same
Reason
holds
in
the
Case
at
Bar.
Then
't
is
considerable
,
and
deserving
of
a
Thought
,
That
if
Learning
be
requisite
to
an
Office
Temporal
,
for
a
Slander
in
which
an
Action
lies
,
there
these
very
words
would
bear
an
Action
.
As
to
say
of
a
Judge
,
or
the
like
,
the
very
words
here
mentioned
,
with
reference
to
his
Office
,
't
would
be
deemed
Scandalous
and
Actionable
:
Now
our
Law
will
not
allow
uncertain
,
doubtful
,
and
ambiguous
words
to
be
so
.
Even
in
Affirmatives
our
Law
allows
of
general
Pleading
,
where
Particulars
would
be
many
:
As
in
Bond
for
performance
of
Covenants
upon
an
Apprentices
Indenture
for
finding
him
Meat
,
Drink
,
Washing
,
Lodging
,
and
other
Necessaries
,
held
that
invenit
Meat
,
Drink
,
Washing
,
Lodging
,
&
alias
res
nocessarias
,
is
a
good
Plea
,
tho'
intirely
uncertain
what
or
how
much
;
and
the
Reason
is
not
only
,
because
't
is
in
the
words
of
the
Covenant
,
for
that
Reason
doth
not
always
hold
,
for
many
times
you
must
shew
how
,
and
are
forced
to
vary
from
the
words
of
the
Covenant
in
the
Breach
;
as
in
case
of
quiet
Enjoyment
,
Breach
must
alledge
how
and
by
whom
,
and
under
what
Title
the
Man
was
disturbed
;
but
there
's
another
Reason
,
because
the
Particulars
would
be
many
.
Cryps
versus
Sir
Henry
Baynton
,
3
Bulstrode
31.
Case
sur
assumpsit
,
That
J.
S.
being
a
Friend
of
the
Defendants
,
and
coming
to
the
Plaintiffs
House
,
he
fell
sick
;
the
Defendant
,
in
consideration
that
the
Plaintiff
would
provide
for
him
such
Necessaries
as
he
should
want
,
he
would
bene
&
fideliter
solvere
proinde
:
The
Plaintiff
shews
that
he
lay
there
two
Months
;
that
the
Plaintiff
provided
him
Necessaries
amounting
in
value
to
,
&c.
and
held
good
without
shewing
the
Particulars
to
avoid
a
multiplicity
of
Reckonings
;
so
't
is
for
a
Surgeons
or
Apothecary's
Cure
.
Another
Rule
in
Pleading
there
is
,
That
a
Certainty
,
or
a
Generality
in
Pleading
shall
be
required
,
according
to
the
nature
of
the
Subject
Matter
pleaded
.
In
pleading
of
Breach
of
a
Statute
Law
,
it
's
enough
to
use
the
Negative
of
the
words
of
such
Statute
,
as
it
is
in
Case
of
a
Covenant
;
and
by
the
same
reason
in
this
Case
,
where
a
Statute
says
the
Bishop
may
refuse
propter
defectum
Scientiae
,
it
's
enough
to
say
in
Literatura
minus
sufficiens
,
especially
when
't
is
added
ac
perinde
inhabilis
.
Then
were
urged
the
Mischiefs
and
Inconveniences
which
must
ensue
and
follow
upon
the
Construction
which
they
would
make
,
that
this
Plea
is
uncertain
;
for
their
Reason
only
can
be
,
as
was
said
before
,
that
the
Court
may
judge
if
it
be
such
a
Deficiency
of
Learning
as
disables
to
hold
a
Curacy
of
Souls
;
and
this
is
the
Reason
all
their
Cases
go
upon
,
and
the
Reason
insisted
upon
below
;
i.
e.
in
effect
that
they
must
try
it
,
not
the
Archbishop
.
The
same
Pretence
is
applicable
to
any
other
defect
,
and
't
will
in
Consequence
confound
Jurisdictions
;
't
will
make
an
Enlargement
of
the
Temporal
,
and
Diminution
of
the
Ecclesiastical
Jurisdictions
,
tho'
both
are
founded
upon
the
same
English
Laws
,
and
of
equal
Age
and
Authority
:
Nor
is
it
any
Answer
which
they
have
alledged
against
this
,
That
the
Judgment
at
Law
is
not
that
this
Hodder
shall
have
Institution
,
but
that
a
Writ
shall
go
to
the
Metropolitan
to
require
him
to
admit
a
fit
Person
upon
Mr.
Hele's
Presentation
;
and
that
if
Mr.
Hodder
be
presented
,
the
Archbishop
may
refuse
him
as
insufficient
;
and
so
the
Archbishop
is
still
Judge
of
the
Sufficiency
.
This
looks
plausible
:
but
they
omit
or
forget
the
Consequence
,
that
if
this
Judgment
stand
,
then
if
the
Archbishop
refuse
,
the
Temporal
Courts
must
Judge
upon
another
Writ
,
Whether
the
Cause
of
Refusal
were
in
a
point
of
Learning
,
which
they
think
requisite
,
for
he
must
not
plead
a
general
Defect
of
Learning
,
but
mention
Particulars
,
that
they
may
judge
of
them
;
this
is
to
subject
even
his
Grace
the
Metropolitan
to
their
Opinion
,
in
an
Affair
within
his
own
Jurisdiction
and
Conusance
.
It
is
at
last
to
enforce
the
Episcopal
Judges
to
contradict
their
own
Opinions
,
and
to
admit
Persons
which
they
think
not
sufficiently
Learned
;
tho'
the
first
Judgment
doth
not
directly
place
in
Hodder
,
yet
the
next
will
,
if
the
Archbishop
prove
of
the
same
mind
:
Now
this
is
apparently
the
Consequence
,
from
the
pretended
Reason
of
the
Judgment
for
them
;
and
it
is
in
effect
to
deny
the
old
Law
,
that
a
defect
of
Learning
is
a
sufficient
Cause
of
Refusal
;
and
that
the
Ordinary
is
Judge
of
that
Defect
,
and
not
the
Temporal
Court
.
And
then
as
to
the
Cases
objected
Dyer
254.
the
Bishop
of
Norwich's
Case
in
a
Quare
Impedit
,
which
is
likewise
in
2
Rolls
Abridg.
355
,
where
the
Bishop
pleads
that
the
Presentee
was
a
common
haunter
of
Taverns
and
other
Places
,
and
Games
unlawful
,
ob
quod
&
diversa
alia
Crimina
consimilia
praed'
,
the
Presentee
fuit
Criminosus
&
sic
inhabilis
&
non
idonea
persona
,
and
this
was
held
an
ill
Plea
:
But
the
Grounds
and
Reasons
of
that
Judgment
were
not
for
the
generality
of
the
Plea
,
but
because
the
defects
specially
declared
before
were
not
sufficient
to
make
the
Presentee
&
sic
Criminosus
,
as
being
not
Mala
in
se
,
but
prohibita
by
particular
Laws
under
certain
Penalties
.
Nay
,
the
Argument
they
would
make
from
the
general
word
Criminosus
,
will
not
hold
in
the
Case
in
question
,
but
is
clearly
distinguishable
from
it
;
because
one
single
Act
,
one
Crime
specially
set
forth
,
would
disable
the
Man
;
but
in
this
case
Ignorance
,
that
works
a
Disability
,
must
not
be
of
any
one
particular
thing
whatsoever
,
but
a
general
defect
of
Knowledge
.
And
another
Reason
against
their
Inference
from
these
and
the
like
Cases
,
is
this
,
they
belong
to
a
different
Examen
,
and
upon
that
they
require
(
as
was
said
before
)
a
different
pleading
.
The
great
Case
,
and
the
only
one
that
can
be
pretended
to
come
near
this
,
is
Speccot's
Case
,
mentioned
in
every
contemporary
Report
of
that
Age
,
as
a
new
Case
;
and
a
new
one
it
is
;
and
the
Reasons
of
it
are
differently
reported
in
divers
Books
;
and
in
truth
,
the
Reasons
of
the
Judgment
do
not
warrant
it
,
nor
make
it
applicable
to
the
Case
at
Bar.
The
Authority
of
it
is
questionable
,
for
they
agree
,
Schism
or
Heresie
,
which
the
Judges
there
take
to
be
all
one
,
a
Cause
of
Refusal
;
and
others
said
,
they
did
not
know
what
was
Schismaticus
inveteratus
;
but
they
did
not
consider
that
the
Archbishop
might
,
tho'
they
did
not
;
but
perhaps
the
Ordinary
may
judge
that
to
be
Schism
which
is
not
:
and
therefore
the
Temporal
Courts
are
to
judge
what
is
Schism
;
and
in
the
enforcing
of
this
Case
below
,
they
said
the
Ordinary
is
Judge
only
of
Matters
of
Fact
,
not
if
the
Fact
be
Schism
;
which
is
somewhat
strange
.
The
Reports
of
that
Case
are
5
Rep.
57.
1
Anderson
189
,
190.
Gold
.
36
,
and
52.
and
3
Leon.
198
,
199
,
and
300.
in
that
Case
the
Bishop
pleaded
that
the
Presentee
was
Schismaticus
inveteratus
&
ideo
non
habilis
:
upon
the
validity
of
this
Plea
there
were
divers
Arguments
;
Two
of
the
Judges
,
says
my
Lord
Anderson
,
were
for
the
Plaintiff
,
and
two
for
the
Defendant
;
and
for
the
Decision
of
the
Matter
,
the
Opinion
of
the
other
was
asked
,
and
by
the
greater
Opinion
Judgment
was
given
pro
quer
.
Then
were
repeated
my
Lord
Anderson's
words
,
fol.
189.
the
Instances
that
were
urged
,
were
,
says
he
,
Criminosus
&
Perjurus
,
but
they
are
Matters
triable
both
by
Law
,
Spiritual
and
Temporal
,
and
the
Coment
,
or
how
is
necessary
to
be
shewn
to
determine
the
Trial
;
but
Schismaticus
in
the
principal
Cause
shall
be
tried
only
by
the
Spiritual
Court
,
and
not
by
the
Temporal
,
as
that
of
an
Heretick
may
be
generally
pleaded
:
And
divers
Cases
were
put
to
prove
General
Pleas
and
Issues
triable
at
Common
Law
,
and
yet
says
he
Judged
pro
Quer
'
.
This
is
my
Lord
Anderson's
Opinion
of
that
Case
,
and
whether
the
Ancient
Authorities
vouched
in
that
Case
,
do
warrant
that
Judgment
,
must
be
submitted
.
Besides
,
by
our
Law
't
is
not
any
one
Opinion
,
tho'
judicially
delivered
,
that
can
make
or
alter
the
Law
,
nay
,
it
doth
not
oblige
any
further
than
the
reason
of
it
is
considerable
,
and
agrees
with
the
constitution
and
the
Rules
of
Law
;
my
Lord
Vaughan
always
declared
in
favour
of
Reason
and
Authority
,
and
that
in
Honour
of
our
Law
,
for
the
contrary
is
to
say
,
't
is
founded
upon
no
Reason
;
then
't
was
urged
,
that
this
Judgment
was
when
the
Courts
below
were
in
struggle
with
the
Ecclesiastical
,
and
the
then
High
Commission
Courts
Erected
by
1
Eliz.
had
given
some
provocation
;
which
,
with
frequent
Prohibitions
,
gave
occasions
to
the
Disputes
between
the
Bishops
and
the
Judges
,
in
the
beginning
of
the
Reign
of
K.
Jac.
1.
But
admitting
the
Case
to
be
Law
,
the
same
is
easily
distinguishable
from
this
,
and
founded
upon
different
Reasons
which
cannot
govern
or
influence
this
.
'T
was
urged
first
in
that
Case
there
was
some
possibility
for
the
Bishop
to
have
set
out
the
Heresie
certainly
and
particularly
,
for
all
Heresie
must
be
founded
upon
some
particular
Tenet
,
that
is
Repugnant
to
the
common
received
and
Orthodox
Doctrine
.
Now
in
this
Case
,
say
they
,
the
Heresie
ought
to
be
Assigned
,
that
the
party
may
Traverse
it
,
and
purge
himself
,
and
the
Arch-Bishop
not
to
be
inveighled
and
obliged
to
run
over
all
the
species
of
Heresie
,
which
,
say
they
,
may
be
almost
impossible
,
but
may
have
only
one
particular
Opinion
to
Examine
,
whether
the
Presentee
did
obstinately
maintain
it
,
for
if
the
Temporal
Court
had
been
of
Opinion
,
that
such
Tenet
in
particular
was
not
Heresie
,
tho'
the
Ordinary
thought
it
so
,
yet
then
they
would
have
over-ruled
the
Plea
,
and
not
have
wrote
to
the
Arch-Bishop
at
all
:
This
is
the
sole
cause
of
that
Judgment
,
and
then
the
consequence
will
be
as
was
observed
before
.
But
their
own
reason
fails
in
this
Case
,
for
here
the
sufficiency
of
Learning
is
Traversable
;
for
as
hath
been
shewn
it
hath
often
been
Traversed
,
and
as
to
the
ea
Ratione
inhabilis
,
no
Objection
can
be
to
that
,
for
the
old
Authorities
Cited
do
warrant
,
nay
,
require
it
;
and
all
Pleas
of
Special
non
est
fact
'
as
by
breaking
of
a
Seal
,
and
the
like
are
in
the
same
manner
.
Then
besides
the
very
words
of
the
Law
of
Articuli
Cleri
,
are
very
much
worthy
of
consideration
;
it
impowers
the
Bishop
to
refuse
a
Clerk
,
propter
defectum
scientiae
&
alias
Causas
rationabiles
,
now
all
these
Causes
of
Refusal
,
mentioned
in
their
cases
,
comes
under
the
causas
Rationabiles
,
and
causa
vaga
&
in
certa
estnon
Rationabilis
,
now
want
of
Learning
is
not
included
by
intendment
,
but
by
express
words
,
and
therefore
need
not
otherwise
be
set
forth
;
take
it
for
granted
,
that
as
they
would
have
it
,
the
Temporal
Judges
are
to
Judge
what
is
a
reasonable
cause
of
Refusal
;
yet
they
are
not
to
Judge
,
if
defect
of
Learning
be
a
cause
or
not
,
for
in
that
the
Statute
is
positive
;
then
if
said
to
be
deficient
in
Learning
,
&
ea
ratione
inhabilis
,
they
had
nothing
to
Judge
upon
,
they
were
only
to
write
to
the
Arch-Bishop
to
know
if
the
Fact
were
true
,
if
he
were
deficient
,
and
therefore
it
need
not
be
set
forth
any
otherwise
,
then
as
the
Statute
expresses
it
;
tho'
in
that
case
,
they
say
,
there
are
divers
sorts
of
Schisms
and
Heresies
in
Doctrines
on
which
the
Bishop
might
warrant
his
Refusal
,
yet
't
is
not
so
much
as
once
pretended
,
there
are
any
Opinions
delivered
in
those
cases
,
that
deficiency
of
Learning
is
subject
to
the
same
Rules
of
Pleading
.
Then
the
Plea
is
in
the
Negative
,
as
was
shewed
before
,
which
is
more
than
enough
to
make
a
good
difference
;
and
Negatives
in
a
Bar
are
always
allowed
to
be
more
general
because
most
favoured
,
and
especially
here
,
where
the
matter
and
person
to
which
the
words
are
applied
,
do
sufficiently
restrain
and
determine
the
seeming
uncertainty
of
it
.
Nothing
can
be
pretended
to
reduce
this
to
a
greater
certainty
,
but
the
Canons
or
the
Statute
of
13
Eliz.
cap.
12.
or
other
Laws
of
the
same
nature
,
1
Canons
of
King
Jac.
1.
made
in
1602.
and
they
were
made
pursuant
to
Canons
made
,
1562.
by
which
,
no
Man
was
to
be
admitted
,
nisi
rationem
fidei
juxta
Articulos
Religionis
in
Synodo
Episcoporum
&
Cleri
Anno
,
1562.
approbatos
Latine
reddere
&
eandem
Scripturae
testimonio
Corroborare
possit
Can.
3
,
4.
Conditiones
in
ordinandis
requisit
'
,
this
is
merely
a
Negative
injunction
on
the
Bishop
never
to
confer
Orders
upon
any
Man
that
cannot
do
this
,
it
is
not
mandatory
upon
him
to
ordain
every
Man
that
can
do
this
,
nor
does
it
any
way
lessen
or
diminish
the
Authority
or
Judgment
of
the
Ordinary
in
Examination
of
the
fitness
and
Learning
requisite
.
So
is
the
Statute
of
13
Eliz.
the
same
induces
an
incapacity
on
those
that
shall
not
subscribe
the
Articles
,
but
it
leaves
all
things
else
to
the
Ecclesiastical
Law
;
neither
the
Canon
nor
the
Statute
are
Derogatory
from
the
Old
Ecclesiastical
Law
,
they
both
leave
it
in
Statu
quo
to
the
Ecclesiastical
Judges
;
no
Man
will
pretend
that
these
are
a
Repeal
of
the
Statute
of
Articuli
Cleri
;
so
that
the
Law
remained
as
it
did
with
more
Latitude
indeed
to
the
Bishop
,
but
not
with
more
favour
to
the
Clerk
.
They
objected
,
that
here
was
not
convenient
notice
to
the
Patron
,
and
the
usual
pleading
of
it
is
the
same
day
.
But
surely
that
's
well
enough
,
and
so
was
it
held
by
all
the
Judges
that
favoured
their
side
in
this
case
,
and
't
is
apparent
,
that
he
had
above
four
Months
time
to
have
presented
another
,
besides
,
the
Judges
declared
below
,
that
if
not
a
convenient
time
,
it
ought
to
have
come
on
their
side
,
but
they
admit
notice
by
their
Replication
,
and
insist
upon
his
Orders
as
an
Estoppel
to
say
that
he
was
Illiterate
.
They
pretend
,
That
he
is
still
under
the
Bishop's
Jurisdiction
,
and
that
he
may
deprive
him
for
the
same
Cause
,
if
sufficient
,
after
Institution
,
but
that
's
a
great
mistake
;
for
,
there
may
be
a
cause
of
Refusal
,
which
is
not
of
Deprivation
,
for
,
he
may
become
Learned
that
was
not
so
,
and
besides
,
the
Rule
is
false
,
after
induction
,
they
would
then
be
discoursing
about
Freehold
,
&c.
a
Man
may
be
refused
,
because
non
compos
,
but
he
cannot
be
deprived
for
that
Cause
,
though
the
Bishop
may
provide
a
Curate
,
&c.
As
to
the
pretence
of
six
Months
notice
,
from
the
time
of
the
Refusal
,
't
was
never
insisted
on
at
the
Bar
in
C.
B.
or
B.
R.
and
the
Judge
who
doubted
,
did
only
say
,
he
was
not
fully
satisfied
with
the
current
Opinion
of
the
Books
;
his
doubt
arose
upon
this
,
That
the
cause
of
Refusal
was
not
within
the
Partron's
knowledge
.
Suppose
the
Man
had
not
Episcopal
Orders
,
but
pretended
to
them
,
and
the
Patron
knew
nothing
of
the
matter
,
should
this
Presentation
prevent
lapse
,
and
the
rest
were
all
of
another
Opinion
and
the
Books
are
full
to
this
effect
,
for
the
Patron
ought
to
present
a
Man
qualified
,
otherwise
't
is
as
no
Presentation
,
and
then
lapse
in
course
.
Suppose
he
had
presented
a
mere
laicus
,
't
is
as
none
;
suppose
he
had
presented
a
Woman
,
as
idonea
persona
,
't
is
as
none
;
and
these
instances
may
seem
Trivial
,
but
our
Books
do
mention
them
.
2
Roll's
Abridg.
364.
Kelway
49.59
.
34
Hen.
7.21
.
14
Hen.
7.21
.
and
Dyer
227.
and
Sir
Symon
Degges
Parson's
Gounsellor
.
Upon
the
whole
,
the
Question
is
,
whether
a
Court
of
Law
shall
Repeal
the
Statute
of
Articuli
Cleri
,
whether
the
Plea
shall
be
adjudged
ill
,
which
is
in
the
very
words
of
that
Statute
;
when
the
same
Fact
was
never
pleaded
otherwise
,
nay
,
when
it
hath
been
pleaded
thus
often
times
,
and
never
excepted
against
till
now
.
Wherefore
it
was
prayed
that
the
Judgment
might
be
Reversed
.
On
the
other
side
't
was
argued
,
That
the
Bishop's
Plea
below
,
was
too
general
,
and
the
Plaintiffs
Replication
good
;
that
his
being
Ordained
a
Priest
,
and
a
Licensed
Preacher
is
enough
,
that
this
is
an
Answer
to
the
Allegation
of
the
Minus
Literatus
,
his
being
a
Priest
is
a
kind
of
a
supersedeas
to
his
Examination
,
that
there
was
no
Learning
requisite
to
his
having
a
Cure
of
Souls
,
which
was
not
Antecedently
necessary
to
his
receiving
of
Orders
:
That
he
ought
not
to
be
admitted
into
Orders
,
unless
he
be
assured
of
or
named
to
some
Curacy
,
all
which
,
supposes
the
Qualifications
Requisite
for
a
Benefice
with
Cure
of
Souls
;
then
't
was
urged
,
that
here
was
not
notice
sufficient
,
for
't
is
not
till
many
days
after
the
Refusal
,
for
this
might
have
put
Hele
the
Patron
beyond
the
possibility
of
making
a
new
Presentation
:
And
in
all
pleadings
of
this
sort
,
the
notice
is
generally
alledged
to
be
the
same
day
,
or
within
a
day
or
two
at
the
most
;
That
certainly
it
ought
to
be
with
convenient
notice
.
But
then
it
was
urged
,
That
the
six
Months
ought
not
to
be
from
the
Death
of
the
last
Incumbent
;
if
there
be
a
person
Criminal
presented
,
which
the
Patron
doth
or
may
know
,
as
well
as
the
Bishop
,
there
the
six
Months
must
be
from
the
Death
;
but
if
it
be
upon
a
refusal
for
a
Cause
which
lies
only
in
the
Bishop's
knowledge
,
then
it
must
be
only
from
the
notice
,
and
that
notice
ought
to
be
personal
;
but
if
the
Months
incur
from
the
Death
,
the
notice
should
be
in
conveient
time
,
and
what
that
is
,
the
Court
must
Judge
.
Then
it
was
urged
from
Speccot's
Case
,
That
this
Plea
is
too
general
and
uncertain
,
that
a
Temporal
right
being
concerned
,
the
Bishop
ought
to
have
set
forth
more
particularly
and
distinctly
the
cause
of
his
Refusal
,
8
Rep.
68.
the
certain
cause
of
a
Divorse
must
be
shewn
,
11
Hen.
7.
27.
2
Leon.
169.
The
Ordinary
is
a
Judge
only
of
the
matter
of
Fact
,
if
true
,
not
if
this
matter
pretended
be
a
cause
of
Refusal
,
he
ought
to
alledge
that
so
particularly
,
as
to
manifest
it
to
the
Court
,
in
which
the
Suit
depends
;
That
't
is
a
legal
cause
of
Refusal
.
He
is
not
a
Judge
,
whether
Hodder's
insufficiency
in
any
one
point
of
Learning
be
a
good
cause
of
Refusal
;
for
,
if
it
should
be
so
,
the
Temporal
Right
of
Patronage
would
be
very
precarious
.
The
Court
ought
to
have
enough
before
them
,
whereon
to
Judge
of
the
Cause
,
as
well
as
that
on
Issue
may
be
joyned
and
tried
;
here
't
is
only
said
that
he
is
less
sufficient
,
not
that
he
is
altogether
illiterate
;
this
will
put
it
in
the
Power
of
the
Ordinary
to
refuse
for
want
of
knowledge
in
any
Learning
as
he
thinks
fit
,
as
Mathematicks
or
Anatomy
,
without
which
,
a
Man
may
be
well
Qualified
to
be
the
Rector
of
a
Benefice
,
and
the
consequence
of
such
Opinion
will
be
much
to
the
prejudice
of
Lay
Patrons
;
that
certainty
in
Pleading
ought
to
be
encouraged
for
the
prevention
of
the
exercise
of
Arbitrary
discretionary
Power
,
that
the
Wisdom
of
the
Common-Law
is
to
reduce
things
to
single
Questions
,
that
the
Determination
upon
them
may
be
plain
,
and
certain
,
and
known
,
and
the
reasons
of
such
Determinations
may
appear
,
which
cannot
well
be
done
,
if
general
Allegations
or
Pleadings
be
countenanced
,
for
which
;
and
other
Reasons
urged
by
the
Counsel
,
who
argued
with
the
Judgment
,
't
was
prayed
that
the
Judgment
might
be
affirmed
.
It
was
replied
on
behalf
of
the
Plaintiff
,
in
the
Writ
of
Error
,
that
the
Books
were
very
plain
,
that
the
six
Months
were
to
incur
from
the
Death
of
the
Incumbent
,
and
then
,
if
there
were
not
notice
in
convenient
and
due
time
,
in
order
to
enable
the
Patron
to
present
again
,
that
this
ought
to
come
on
the
other
side
.
That
to
require
Learning
in
Presentees
to
Benefices
,
would
promote
the
Honour
of
the
Church
,
nay
,
of
the
Nation
in
general
.
That
every
Man
who
knew
this
Presentee
and
his
Ignorance
,
even
as
to
the
Latin
Tongue
,
must
acknowledge
,
that
the
Reverend
Prelate
who
refused
him
,
had
done
worthily
,
and
becoming
the
Character
of
his
Order
,
Family
,
and
Person
,
and
therefore
't
was
prayed
that
the
Judgment
should
be
Reversed
,
and
it
was
Reversed
.
Robert
Davis
versus
Dr.
John
Speed
.
WRIT
,
of
Error
on
a
Judgment
in
Ejectment
in
the
King's
-
Bench
,
for
certain
Lands
in
Hamp-Shire
;
the
Declaration
was
upon
the
Demise
of
Francis
Cockey
:
The
Verdict
finds
,
that
William
Horne
and
Ann
his
Wise
were
seized
of
the
Lands
in
Question
,
in
their
Demesne
as
of
Fee
in
Right
of
the
Wife
,
that
they
made
and
executed
a
Deed
,
Covenanting
to
Levy
a
Fine
thereof
,
to
the
use
of
the
Heirs
of
the
said
William
Horne
,
lawfully
begotten
and
to
be
begotten
on
the
Body
of
the
said
Ann
his
Wife
,
and
for
default
of
such
Issue
,
then
to
the
use
of
the
right
Heirs
of
the
said
William
Horne
for
ever
,
and
a
Fine
was
Levied
accordingly
to
these
uses
;
that
William
and
Ann
were
seized
,
prout
Lex
postulat
,
that
they
had
Issue
,
William
Horne
their
Son
,
who
Died
without
Issue
in
the
Life
of
William
and
Ann
,
that
she
Died
,
and
William
the
Father
,
and
Husband
Survived
her
,
that
then
he
Died
without
Issue
,
that
the
lessor
of
the
Plaintiff
is
Sister
and
Heir
of
the
said
William
Horne
,
that
after
his
Death
,
she
entred
and
was
seized
prout
Lex
postulat
,
that
Elizabeth
,
Joanna
,
and
others
,
were
Co-heirs
of
the
said
Ann
,
that
their
Estate
and
Interest
came
by
mean
conveyances
to
the
Defendant
Speed
;
That
he
was
seized
prout
Lex
postulat
,
that
the
Lessor
of
the
Plaintiff
entered
and
Ousted
the
said
Speed
,
and
made
the
Demise
in
the
Declaration
,
and
that
the
Plaintiff
entered
and
was
Possessed
,
till
the
Defendant
entered
upon
him
,
and
Ousted
him
:
And
if
it
shall
appear
to
the
Court
,
that
the
Desenant's
entry
was
lawful
,
they
find
the
Defendant
not
Guilty
,
and
if
,
&c.
upon
this
special
Verdict
,
Judgment
was
given
in
B.
R.
for
the
Defendant
.
And
now
it
was
Argued
on
the
behalf
of
the
Plaintiff
,
in
the
Writ
of
Error
,
that
this
Judgment
was
Erroneous
,
and
ought
to
be
Reversed
,
for
that
these
Lands
belonged
to
the
Heirs
of
the
Husband
by
force
of
this
Deed
and
Fine
;
that
this
was
in
the
Case
of
an
Use
,
which
was
to
be
construed
as
much
according
to
the
intent
of
the
Parties
as
a
will
;
That
if
by
any
construction
,
that
intent
could
be
fulfilled
,
it
ought
:
That
the
intent
of
the
parties
here
was
plain
to
give
this
Estate
to
the
Husband
and
his
Heirs
,
that
uses
are
to
be
governed
by
Equity
,
and
that
therefore
the
meaning
of
the
persons
concerned
,
was
to
be
pursued
;
That
the
Woman
intended
to
take
nothing
her self
,
nor
to
reserve
any
thing
,
but
to
part
with
the
whole
:
That
here
was
an
use
by
implication
in
the
Husband
,
tho'
none
could
result
back
to
the
Husband
,
because
he
had
none
before
;
but
that
in
this
case
as
in
that
of
a
Will
,
an
use
might
by
implication
very
well
be
raised
to
the
Husband
,
and
then
this
might
be
good
by
way
of
Remainder
,
after
the
Death
of
the
Husband
;
or
create
an
Estate
Tail
in
him
,
by
coupling
the
use
implied
to
him
for
Life
,
with
that
to
the
Heirs
of
his
Body
;
and
that
if
it
were
not
so
,
then
that
it
was
good
as
a
springing
contingent
use
to
the
Heirs
of
the
Body
of
the
Husband
,
&c.
and
that
in
the
mean
time
till
that
Contingency
happened
,
the
same
was
to
the
use
of
the
Wife
and
her
Heirs
;
And
that
this
Construction
contradicted
no
Rule
of
Law
;
That
it
was
no
more
than
was
allowed
in
case
of
a
Will
,
by
way
of
Executory
Devise
,
according
to
Pell
and
Brown's
Case
,
in
2
Cro.
that
the
Estate
should
remain
in
the
Wife
and
her
Heirs
,
during
the
Life
of
the
Husband
,
that
this
was
never
designed
to
take
effect
as
an
use
to
be
vested
immediately
,
and
it
was
no
more
then
if
the
Deed
had
declared
the
use
to
be
after
the
expiration
of
twenty
Years
,
or
at
other
future
time
,
to
the
Heirs
of
the
Body
of
William
Horne
,
and
for
default
of
such
Issue
,
to
his
right
Heirs
,
and
that
such
time
had
happened
,
the
use
would
have
vested
in
the
Heirs
of
his
Body
,
or
in
his
right
Heirs
,
if
he
had
Died
before
that
time
:
That
't
is
true
,
there
must
be
a
person
capable
of
taking
at
the
time
when
the
Contingency
happens
,
and
so
there
was
here
,
at
the
time
of
his
Death
;
That
it
could
never
be
intended
that
the
Heirs
should
take
immediately
,
for
that
then
there
was
no
such
person
in
being
,
there
could
be
no
Heirs
during
his
Life
:
That
this
was
like
the
Case
of
Webb
,
and
Sir
Caesar
Cranmer
,
where
the
Trust
of
the
Estate
during
the
Life
of
the
Duke
of
Southampton
,
was
adjudged
to
remain
in
the
Heirs
of
the
Devisor
;
the
Duke
himself
not
being
capable
to
take
it
;
That
here
being
no
person
able
to
take
under
this
Deed
and
Fine
during
the
Husband's
Life
,
it
shall
be
construed
to
remain
as
it
was
before
,
till
that
Life
ends
,
and
then
the
use
ought
to
take
effect
:
for
otherwise
,
both
the
Deed
and
Fine
are
to
no
purpose
,
they
are
all
in
vain
,
and
the
intent
of
the
parties
to
it
is
defeated
.
And
there
were
Cited
the
Lord
Paget's
Case
,
in
1
Anderson
,
and
Woodlett
,
and
Denny
,
2
Crook
439.
and
1
Leon
256.
On
the
other
side
,
it
was
argued
with
the
Judgment
,
that
this
Deed
and
Fine
can
raise
no
use
,
to
the
Heirs
of
the
Husband
,
according
to
the
Rules
of
Law
.
It
was
insisted
,
That
if
Husband
and
Wise
do
levy
a
fine
of
the
Wife's
Land
,
and
no
uses
are
declared
,
or
such
uses
are
declared
,
as
are
void
and
can
never
take
effect
;
such
Fine
is
to
the
use
of
the
Wife
and
her
Heirs
,
that
in
such
case
the
Estate
remins
'
as
it
was
,
or
if
the
Fine
Operates
any
thing
it
shall
be
for
the
benefit
of
the
party
to
whom
it
did
belong
before
.
Then
it
was
urged
,
That
this
was
designed
to
raise
an
use
immediately
to
the
Heirs
of
the
,
&c.
and
that
there
was
no
person
capable
of
taking
at
the
time
of
levying
this
Fine
,
the
common
Maxim
in
the
Law
proving
it
,
quod
nemo
est
heres
Viventis
;
that
the
name
and
nature
of
an
Heir
import
a
successor
after
Death
,
that
this
being
designed
to
raise
an
use
,
ex
presenti
,
and
no
person
being
capable
of
taking
at
that
time
,
the
same
must
be
void
:
That
this
is
the
case
of
a
Deed
,
executed
in
the
Life-time
of
the
parties
,
and
not
a
Will
,
where
large
allowances
are
often
made
in
favour
of
supposed
intentions
,
by
reason
that
persons
are
often
surprized
by
Sickness
,
and
presumed
to
want
the
assistance
of
Counsel
,
but
the
Rules
of
Law
are
always
allowed
to
govern
in
Construction
of
Deeds
.
Then
it
was
urged
,
that
nothing
was
ever
designed
to
the
Husband
himself
by
this
;
that
no
words
in
the
Deed
can
favour
such
a
presumption
,
that
this
must
either
work
as
an
Estate
in
present
,
or
by
way
of
remainder
;
if
the
latter
then
by
the
known
Rules
of
Law
,
there
must
be
a
particular
Estate
to
support
it
,
and
such
particular
Estate
must
be
either
expressed
or
implied
;
here
is
none
expressed
,
and
if
implied
,
it
must
be
in
the
Wife
,
and
if
in
her
,
then
she
dying
before
the
Husband
,
her
particular
Estate
did
determine
before
the
remainder
could
take
place
,
and
consequently
by
all
the
Rules
of
Law
,
it
can
never
take
place
;
and
no
particular
Estate
can
be
implied
,
in
or
for
the
Husband
,
for
that
there
is
nothing
said
shewing
such
intent
,
and
if
the
Construction
of
Law
be
to
prevail
,
then
as
was
urged
before
,
that
is
in
favour
of
the
Wife
.
But
here
,
it
was
plainly
designed
to
take
effect
immediately
,
and
therefore
void
,
because
there
was
no
person
in
being
,
capable
of
taking
at
the
time
the
Estate
was
intended
to
vest
,
and
no
uses
are
to
be
executed
by
the
State
,
which
are
limitted
against
the
Rules
of
the
Common-Law
,
Chudleigh's
Case
,
1
Rep.
129.
if
the
limitation
of
an
use
be
at
this
day
to
A.
for
Years
,
and
afterwards
to
the
use
of
the
Heirs
or
Wife
of
B.
which
shall
be
,
this
is
void
,
because
't
would
have
been
void
,
if
limitted
,
in
possession
,
Dyer
190.
the
Earl
of
Bedford's
Case
in
Popham
,
3
,
4.
and
82.
resolved
in
like
manner
to
be
void
,
because
would
have
been
so
in
an
Estate
conveyed
at
Common-Law
:
And
,
all
that
can
be
objected
,
is
,
that
then
this
is
all
void
,
which
is
no
more
than
may
be
pretended
upon
every
imperfect
conveyance
,
but
here
the
Case
is
in
a
Court
of
Law
,
and
the
Defendant
is
a
Purchaser
who
hath
been
Thirty
Years
in
Possession
,
tho'
that
doth
not
appear
in
the
Case
.
And
it
was
said
,
That
as
to
the
Notion
of
a
springing
contingent
use
,
't
is
hardly
intelligible
in
it self
,
and
by
no
means
applicable
to
this
Case
,
because
here
are
no
words
in
this
Deed
,
that
carry
any
relation
to
a
future
time
or
Contingency
,
and
the
Objection
is
only
this
,
That
the
Conveyancer
was
mistaken
in
his
Judgment
,
or
that
the
parties
knew
not
what
they
meant
,
or
that
they
meant
to
create
such
an
Estate
,
and
in
such
a
manner
,
as
the
Law
will
not
allow
;
and
neither
of
these
are
Reasons
sufficient
to
prevail
for
the
Reversing
of
a
Judgment
given
according
to
the
Rules
of
Law
,
by
which
Men's
Inheritances
have
all
along
been
governed
,
and
upon
which
,
many
Estates
do
now
depend
.
'T
was
further
urged
,
That
the
contrary
Opinion
,
which
must
be
advanced
to
annul
this
Judgment
,
would
reder
the
Law
and
Men's
Conveyances
,
as
doubtful
and
uncertain
as
last
Wills
and
Testaments
,
and
submit
Men's
Titles
to
the
Arbitrary
Power
and
Will
of
those
that
shall
Judge
of
them
;
It
is
to
impower
them
to
suppose
intentions
where
not
expressed
,
and
to
raise
uses
by
Implication
,
where
they
were
never
designed
:
And
in
short
,
't
will
destroy
all
the
difference
between
good
and
bad
Conveyances
,
and
enable
Men
to
limit
uses
and
raise
Estates
contrary
to
,
and
in
different
manner
from
what
the
Law
hath
hitherto
allowed
;
it
will
render
Purchases
more
uncertain
than
they
are
at
present
,
and
that
's
more
than
enough
already
,
and
the
consequence
must
be
to
produce
a
confusion
in
property
,
&c.
wherefore
,
upon
the
whole
,
it
was
prayed
,
That
the
Judgment
might
be
affirmed
,
and
it
was
affirmed
accordingly
.
Watts
&
al'
versus
Crooke
.
APpeal
from
a
Decree
in
Chancery
:
The
Case
in
short
was
this
;
That
Peter
Crooke
and
Elizabeth
his
Wife
,
who
was
Sister
of
the
half
Blood
to
George
Watts
,
claimed
to
have
an
equal
share
with
John
Watts
and
Elizabeth
Camfield
,
who
were
Brother
and
Sister
of
the
whole
Blood
to
the
Deceased
,
of
his
Personal
Estate
;
and
a
Decree
was
made
in
Chancery
in
favour
of
Crooke
and
his
Wife
.
It
was
argued
on
behalf
of
the
Appellants
,
That
the
half
Blood
ought
to
have
but
a
half
share
:
That
in
the
Case
of
Inheritances
,
the
whole
Blood
was
preferred
;
and
that
,
tho'
such
Rule
could
not
govern
intirely
in
this
Case
,
yet
it
shewed
which
ought
to
have
the
preference
;
that
the
true
Reason
of
Distribution
was
this
,
The
Law
was
to
give
in
like
manner
,
as
he
might
reasonably
be
supposed
willing
to
have
given
his
Estate
,
in
case
he
had
made
a
Will
,
and
had
not
been
surprised
by
a
sudden
Death
;
that
every
Man
was
supposed
to
favour
his
next
of
Kin
;
that
the
Statute
of
Distributions
did
the
same
thing
;
and
then
that
the
whole
Blood
was
nearer
of
Kin
,
because
did
partake
of
both
the
Stocks
from
whence
he
came
;
that
the
Relation
or
Kindred
in
this
Case
intirely
came
from
the
Parents
;
that
this
was
not
an
Alliance
by
his
own
Contract
as
Marriage
,
or
the
like
;
that
the
Inclination
was
supposed
to
arise
to
them
from
the
Natural
Love
he
bore
to
the
Common
Ancestors
;
that
such
Inclination
could
never
be
supposed
equal
,
where
the
Party
was
only
of
the
half
Blood
:
And
much
to
this
effect
,
and
many
Arguments
drawn
from
the
Civil
Law
,
were
urged
in
favour
of
the
Appellant
,
and
several
Presidents
cited
,
where
it
had
been
judged
since
the
Statute
for
the
half
Blood
to
have
but
a
half
share
,
by
Sir
Richard
Lloyd
.
On
the
other
side
it
was
argued
,
That
the
half
Blood
is
as
near
a
Kin
to
the
Intestate
,
as
the
whole
Blood
,
and
ought
to
have
an
equal
Share
of
the
Personal
Estate
,
with
the
whole
Blood
;
that
the
Party
must
be
presumed
equally
inclined
to
each
Parent
;
that
the
Brother
of
the
half
Blood
was
as
much
a
Brother
as
one
of
the
whole
;
that
the
whole
Blood
was
preferrable
in
Descents
,
but
that
was
only
upon
account
of
a
Maxim
in
the
Law
;
whereas
here
they
are
equally
of
Kin
;
the
whole
Blood
is
no
more
a
Brother
than
the
half
;
in
the
same
Relation
there
can
be
no
difference
or
degree
;
it
might
as
well
be
pretended
to
have
a
difference
allowed
upon
the
account
of
Seniority
;
that
Opinions
and
Practise
had
been
with
the
Decrees
;
that
this
hath
been
taken
to
be
the
Law
in
Westminster-hall
.
Before
the
Statute
,
't
was
held
that
a
Sister
of
the
half
Blood
is
in
equal
degree
with
the
whole
,
Brown
versus
Wood
,
Allen's
Rep.
36.
and
so
cited
in
Smith's
Case
,
Mod.
Rep.
209.
So
in
the
Case
of
Milborne
and
Milborne
,
30
March
1671.
before
the
Lord
Keeper
Bridgman
:
W.
M.
had
by
Will
devised
all
his
Lands
in
Trust
to
pay
every
Brother
and
Sister
he
had
living
40
l.
per
Annum
each
,
and
he
had
several
Brothers
and
Sisters
,
both
of
the
half
and
whole
Blood
;
the
Brothers
of
the
whole
Blood
did
oppose
the
payment
of
the
40
l.
per
Annum
to
those
of
the
half
Blood
,
but
't
was
adjudged
and
decreed
,
that
they
are
equally
entituled
to
the
40
l.
per
Annum
a
piece
,
and
enjoyed
accordingly
:
Farmer
versus
Lane
and
Nash
in
Chancery
,
26
Octob.
1677.
declared
and
adjudged
by
the
Lord
Chancellor
Nottingham
,
That
the
half
Blood
are
in
equal
degree
of
Kindred
with
the
whole
Blood
,
and
ought
to
have
an
equal
Share
of
the
Personal
Estate
.
The
like
was
in
the
Case
of
Stapleton
and
the
Lord
Merion
against
the
Lord
Sherrard
and
his
Lady
in
Chancery
by
Judge
Windham
,
13
June
1683.
the
Case
was
thus
,
Robert
Stapleton
had
a
Sister
of
the
whole
Blood
,
and
a
Brother
and
Sister
of
the
half
Blood
,
and
died
Intestate
:
Administration
was
granted
to
his
Wife
the
Lady
Sherrard
,
who
claimed
a
Moiety
of
the
Personal
Estate
by
the
Custom
of
the
Province
of
York
,
and
a
quarter
of
the
other
Moiety
by
force
of
the
Act
for
Distribution
of
Intestates
Estates
,
and
adjudged
that
the
Wife
should
have
only
one
Moiety
,
and
the
other
Moiety
to
be
divided
equally
between
the
Brothers
and
Sisters
both
of
the
whole
and
half
Blood
.
This
Cause
was
Reheard
the
Seventh
of
May
1685.
by
the
Lord
Guilford
,
upon
the
Certificate
of
his
Grace
the
Lord
Archbishop
,
to
whom
it
was
referred
to
certifie
the
Custom
of
the
Province
of
York
;
who
certified
that
the
Wife
shall
have
only
a
Moiety
,
and
the
other
Moiety
shall
be
divided
amongst
the
next
of
Kindred
,
and
adjudged
that
the
half
Blood
shall
have
an
equal
Share
with
the
whole
,
and
so
the
former
Decree
was
confirmed
.
The
same
was
adjudged
by
Mr.
Justice
Charlton
,
June
30.
1685.
in
the
Case
of
Pullen
and
his
Wife
against
Serjeant
,
in
the
Court
of
Chancery
.
The
like
was
,
amongst
other
things
,
declar'd
and
decreed
by
the
Lord
Jessryes
,
Febr.
19.
1686.
in
the
Case
of
the
late
Lord
Winchelsea
against
Noraliff
and
Wentworth
;
upon
which
Hearing
were
present
and
assisting
the
then
Lord
Chief
Baron
Atkyns
,
and
Mr.
Justice
Lutwich
;
and
so
was
it
Nov.
20.
1689.
between
Stephens
and
Throgmorton
in
Chancery
.
It
hath
likewise
been
held
so
in
the
Ecclesiastical
Court
,
and
accordingly
adjudged
by
Sir
Richard
Raynes
upon
Solemn
Argument
,
by
the
most
eminent
Counsel
,
both
of
the
Civil
and
Common
Law
,
in
the
Case
of
James
Storey
,
Febr.
26.
1685.
and
in
the
Case
of
George
Hawles
,
by
the
same
Judge
,
upon
June
1.
1687.
Then
it
was
urged
,
That
the
Statute
of
Jac.
2.
for
reviving
and
continuance
of
several
Acts
of
Parliament
therein
mentioned
,
proves
this
;
for
't
is
enacted
,
That
if
after
the
Death
of
the
Father
,
any
of
his
Children
shall
die
intestate
,
without
Wife
or
Children
,
in
the
life
time
of
the
Mother
,
every
Brother
and
Sister
,
and
the
Representatives
of
them
,
shall
have
an
equal
share
;
and
that
a
Brother
of
the
half
Blood
,
is
a
Brother
to
the
Intestate
as
well
as
a
Brother
of
the
whole
Blood
,
and
therefore
ought
to
have
a
share
,
and
an
equal
share
with
the
rest
.
And
upon
consideration
of
all
those
Presidents
,
and
there
being
no
Practise
against
it
,
except
that
of
Sir
Richard
Lloyd's
,
it
was
prayed
that
the
Decree
might
be
confirmed
,
and
it
was
confirmed
.
Lee
Warner
Versus
William
North.
APpeal
from
a
Decree
of
the
Lord
Chancellor
,
which
over-ruled
the
Exceptions
taken
by
the
Appellant
,
to
a
Decree
made
by
Commissioners
for
Charitable
Uses
,
concerning
a
Gift
by
Bishop
Warner's
Will
;
and
the
same
was
received
,
and
the
Parties
ordered
to
answer
.
And
each
side
being
heard
by
their
Counsel
,
the
Decree
was
affirmed
.
Vide
the
Statutes
concerning
Charitable
Uses
and
the
Delegates
;
and
query
how
they
differ
:
And
whether
an
Appeal
doth
not
lye
upon
a
Sentence
by
Delegates
,
as
well
as
on
a
Decree
of
Chancery
upon
a
Decree
of
Commissioners
for
Charitable
Uses
?
Briggs
versus
Clarke
.
WRit
of
Error
on
a
Judgment
in
B.
R.
affirmed
in
the
Exchequer
Chamber
,
upon
a
Verdict
in
Debt
for
the
Escape
of
one
Cook
;
and
none
appearing
for
the
Plaintiff
in
the
Writ
of
Error
,
the
Judgment
was
affirmed
with
the
increase
of
Forty
pounds
in
Costs
.
Vide
the
Case
of
Ellison
and
Warner
,
Mich.
18
Car.
2.
B.
R.
2
Keeble
91.
Whether
a
Writ
of
Error
lyes
in
Parliament
after
Judgment
affirmed
in
the
Exchequer
Chamber
?
Or
if
that
proceeding
in
the
Exchequer
Chamber
doth
not
come
in
lieu
of
Error
in
Parliament
,
according
to
the
Statute
of
Eliz.
?
William
Bridgman
&
al'
Versus
Rowland
Holt
&
al'
.
A
Writ
of
Error
and
Petition
in
Parliament
.
The
Case
below
was
thus
:
William
Bridgman
brings
an
Assize
for
the
Office
of
chief
Clerk
for
inrolling
of
Pleas
in
the
Court
of
King's
Bench
;
and
the
Plaintiff
declares
that
the
Office
of
chief
Clerk
for
inrolling
of
Pleas
in
the
Court
of
King's
Bench
,
was
time
out
of
mind
granted
and
grantable
by
the
Kings
and
Queens
of
this
Realm
;
and
that
King
Charles
the
Second
,
by
Letters
Patents
under
the
Great
Seal
of
England
,
Dated
the
Second
of
June
,
in
the
Five
and
twentieth
Year
of
his
Reign
,
(
after
a
Recital
that
Robert
Henley
and
Samuel
Wightwick
were
duly
admitted
to
this
Office
for
their
Lives
)
granted
this
Office
(
upon
the
Petition
of
Eliott
)
to
Silas
Titus
,
so
soon
as
it
should
become
void
;
and
that
Wightwick
was
dead
,
and
Titus
had
surrendred
his
Patent
,
did
,
in
consideration
of
Service
done
by
the
Earl
of
Arlington
,
grant
this
Office
to
the
Plaintiff
and
his
Heirs
,
for
the
Lives
of
the
Earl
of
Arlington
,
Duke
of
Grafton
and
Dutchess
of
Grafton
,
and
the
longer
liver
of
them
,
from
and
after
the
Death
,
Forfeiture
,
or
Surrender
of
Sir
Robert
Henley
,
and
that
Sir
Robert
Henly
was
dead
,
and
that
thereupon
the
Plaintiff
became
seized
,
and
was
seized
of
the
Office
till
the
Defendants
did
disseize
him
,
&c.
The
Defendants
pleaded
that
they
did
not
wrong
or
disseize
the
Plaintiff
.
Upon
the
Trial
of
this
General
Issue
at
the
Bar
of
the
King's-Bench
,
before
the
three
puisne
Judges
,
the
Chief
Justice
then
sitting
near
the
Defendant's
Counsel
upon
a
Chair
uncovered
,
the
Plaintiff
gave
in
Evidence
the
Letters
Patents
of
2
June
,
25
Car.
2.
Then
it
was
proposed
by
the
Counsel
for
the
Defendant
,
That
they
would
prove
their
Allegation
,
that
the
Office
was
anciently
granted
by
the
Kings
and
Queens
of
England
,
as
was
declared
;
but
no
Evidence
was
given
besides
this
Patent
of
Car.
2.
Then
the
Counsel
for
the
Defendant
waving
the
just
Exception
which
they
might
have
taken
to
the
Plaintiff's
Grant
as
to
him
and
his
Heirs
,
which
ought
not
to
be
of
such
an
Office
,
for
that
by
that
means
it
might
come
to
an
Infant
:
They
insisted
upon
the
meer
right
of
Granting
the
said
Office
,
viz.
that
it
was
not
grantable
by
the
Crown
,
but
was
an
Office
belonging
to
the
Chief
Justice
of
the
King's
Bench
,
and
grantable
by
him
.
Then
to
prove
this
,
it
was
shewn
,
That
this
Officer
is
to
Inroll
Pleas
between
Party
and
Party
only
,
and
had
nothing
to
do
with
any
Pleas
of
the
Crown
or
Criminal
Matters
;
that
all
the
Rolls
and
Records
in
this
Office
were
in
the
Custody
of
the
Chief
Justice
;
that
all
the
Writs
to
certifie
or
remove
the
Records
in
this
Clerk's
Office
,
are
directed
to
the
Chief
Justice
;
and
from
the
nature
of
the
Imployment
,
't
was
insisted
,
that
in
truth
he
was
but
the
Chief
Justices
Clerk
,
and
that
consequently
the
same
must
be
granted
by
the
Chief
Justice
.
And
for
further
proof
,
it
was
shown
by
the
Records
of
the
Court
,
that
for
the
space
of
Two
hundred
thirty
five
years
past
,
this
Office
when
void
,
had
been
granted
by
the
Chief
Justice
,
and
enjoy'd
accordingly
under
such
Grants
.
In
Trin.
36
Hen.
6.
Rot.
36.
inter
placita
Reg.
Anno
Dom.
1458.
It
is
inrolled
thus
,
Be
it
remembred
,
that
the
Tenth
of
July
this
Term
,
in
the
Court
of
our
Lord
the
King
at
Westminster
,
came
William
Sond
,
chief
Clerk
of
our
Lord
the
King
,
for
inrolling
Pleas
,
before
the
King
himself
,
in
his
proper
Person
;
and
in
the
same
Court
of
his
Free-will
did
surrender
his
said
Office
into
the
hands
of
Sir
John
Fortescue
Kt.
Chief
Justice
of
that
Court
(
to
whom
of
right
it
doth
belong
to
grant
that
Office
to
whomsoever
he
pleaseth
,
whensoever
that
Office
shall
be
void
,
during
the
time
that
the
said
Sir
John
Fortescue
shall
be
Chief
Justice
)
and
that
Office
doth
resign
and
relinquish
to
the
use
of
William
Brome
;
and
the
said
Chief
Justice
doth
accept
the
said
Surrender
,
and
doth
the
same
day
grant
the
said
Office
to
the
said
William
Brome
,
who
is
presently
admitted
into
the
said
Office
for
his
Life
,
and
sworn
accordingly
.
Mich.
1.
Edw.
4.
Rot.
51.
Upon
Brome's
Surrender
to
Sir
John
Markham
then
Chief
Justice
,
the
Chief
Justice
grants
it
to
Mr.
Sonde
,
who
is
admitted
for
Life
,
and
sworn
.
Mich.
8
Edw.
4.
Rot.
26.
1467.
Upon
the
Surrender
of
William
Sonde
to
the
said
Sir
John
Markham
then
Chief
Justice
,
he
grants
it
to
Reginald
Sonde
,
who
is
admitted
and
sworn
.
Reginald
Sonde
enjoyed
this
Office
till
the
time
of
Henry
the
Seventh
,
and
then
Bray
came
in
,
and
was
Clerk
till
the
13
H.
7.
and
then
came
in
Roper
.
Hill.
9
Hon.
8.
Rot.
3.
Anno
1518.
Upon
the
Surrender
of
this
place
to
Sir
John
Fineux
Chief
Justice
,
by
John
Roper
,
the
Chief
Justice
grants
the
Office
to
Sir
John
Roper
and
William
Roper
,
who
are
admitted
for
their
Lives
and
sworn
.
Hill.
1
&
2
Edw.
6.
Anno
1547.
Upon
the
Surrender
of
William
Roper
(
Sir
John
being
then
dead
)
to
Sir
Richard
Lister
then
Chief
Justice
,
he
grants
the
Office
to
William
Roper
and
Rute
Heywood
,
and
they
are
admitted
and
sworn
.
Hill.
15
Eliz.
1573.
Upon
the
Surrender
of
William
Roper
(
Heywood
being
dead
)
to
Sir
Robert
Catlin
then
Chief
Justice
,
he
granted
this
Office
to
John
Roper
and
Thomas
Roper
for
their
Lives
,
and
they
are
admitted
and
sworn
.
Mich.
14
Jac.
1
Rot.
2.
Anno
1616.
Upon
the
Surrender
of
John
Roper
(
Thomas
being
dead
)
to
Sir
Henry
Mountagne
then
Chief
Justice
,
he
grants
the
Office
to
Robert
Heath
and
Robert
Shute
for
their
Lives
,
who
are
admitted
and
sworn
thereupon
.
Hill.
18
Jac.
1.
1620.
Shute
being
dead
,
upon
Sir
Robert
Heath's
Surrender
to
Sir
James
Leigh
then
Chief
Justice
,
he
grants
the
Office
to
Sir
Robert
Heath
and
George
Paul
for
their
Lives
,
and
they
are
sworn
and
admitted
in
Court
.
Mich.
5
Car.
1.
Upon
the
Surrender
of
Sir
Robert
Heath
and
Sir
George
Paul
to
Sir
Nicholas
Hide
then
Chief
Justice
,
he
grants
it
to
Robert
Henley
and
Samuel
Wightwick
for
their
Lives
,
and
they
are
admitted
and
sworn
.
Trin.
1654.
Upon
Wightwick's
Surrender
to
H.
Roll
then
Chief
Justice
(
Henly
being
then
under
Sequestration
)
the
Chief
Justice
grants
it
to
Sam.
Wightwick
and
to
Robert
Henly
Junior
for
their
Lives
,
and
they
are
admitted
and
sworn
.
Mich.
12
Car.
2.
Upon
the
Surrender
of
Samuel
Wightwick
and
Robert
Henly
to
Sir
Robert
Foster
then
Chief
Justice
,
he
grants
it
to
Henly
and
Wightwick
for
their
Lives
,
and
they
are
sworn
.
Wightwick
died
soon
after
,
and
Sir
Robert
Henly
enjoy'd
it
under
that
Grant
32
years
.
And
it
was
observed
on
behalf
of
the
Defendant
,
That
in
all
these
Records
produced
and
read
in
Court
,
after
the
mention
of
the
Surrender
to
the
Chief
Justice
,
there
are
these
words
,
To
whom
of
right
it
doth
belong
to
grant
that
Office
whensoever
it
shall
be
void
.
It
was
then
further
insisted
on
and
proved
,
That
there
are
in
the
nature
of
Clerks
,
three
considerable
Officers
of
the
Court
of
King's
Bench
:
The
first
and
chiefest
is
the
Clerk
of
the
Crown
,
called
sometimes
Coronator
&
Attornat'
Domini
Regis
,
&c.
his
Business
is
to
draw
all
Indictments
,
Informations
,
&c.
in
Pleas
of
the
Crown
.
This
Officer
being
the
chief
Clerk
in
Court
,
is
always
made
by
Patent
under
the
Great
Seal
.
The
second
Officer
is
this
,
the
Prothonotary
or
chief
Clerk
for
inrolling
Pleas
between
Party
and
Party
in
Civil
Matters
:
He
and
his
Under-Clerks
do
inroll
all
Declarations
,
Pleadings
,
&c.
in
Civil
Causes
,
especially
where
the
Proceedings
are
by
Bill
.
This
Clerk
files
in
his
Office
,
all
Bills
,
Declarations
,
&c.
and
all
the
Writs
of
this
Court
in
Civil
Matters
,
are
made
by
him
and
his
Under-Clerks
,
and
tested
by
the
Chief
Justice
.
And
he
hath
the
custody
of
all
Returns
of
Elegits
,
Executions
,
Scire
Facias's
,
and
the
filing
of
all
Villes
;
every
of
which
are
in
the
Eye
and
Judgment
of
the
Law
,
in
the
hands
of
the
Chief
Justice
,
whose
Clerk
this
Officer
is
.
The
third
is
the
Custos
Brevium
,
who
keeps
all
the
Rolls
and
Records
of
Judgments
in
this
Court
,
which
are
also
said
to
be
in
the
custody
of
the
Chief
Justice
:
And
this
Office
,
when
void
,
is
in
his
Gift
and
Disposal
.
It
was
further
shewn
on
the
behalf
of
the
Defendants
,
That
in
the
Statute
of
Edw.
6.
against
the
Sale
of
Offices
,
there
is
a
Salvo
to
the
two
Chief
Justices
and
Judges
of
Assize
,
to
dispose
of
the
Offices
in
their
disposition
,
as
they
used
formerly
.
And
ever
since
that
Statute
,
these
two
Offices
of
chief
Clerk
to
inroll
the
Pleas
,
&c.
and
the
Custos
Brevium
,
have
without
controul
been
disposed
by
the
Chief
Justice
of
the
Court
of
King's
Bench.
And
it
is
also
observed
,
That
in
the
Grant
of
this
Office
to
Mr.
Bridgman
the
Plaintiff
,
it
is
recited
that
Henly
and
Wightwick
were
debito
modo
admitted
to
this
Office
,
and
yet
they
never
had
any
Grant
from
the
Crown
,
nor
any
other
Grant
,
except
that
from
the
Chief
Justice
before
mentioned
.
Then
to
prove
the
Defendant's
Title
to
the
Office
,
the
Grant
of
the
now
Chief
Justice
to
them
for
their
Lives
,
was
produced
,
and
read
,
and
proved
,
that
they
were
admitted
and
sworn
.
To
answer
all
this
Evidence
,
there
was
produced
the
Copy
of
an
Act
of
Parliament
which
was
made
in
15
Edw.
3.
to
this
effect
:
It
is
consented
,
that
if
any
of
the
Offices
aforesaid
(
which
are
other
great
Offices
mentioned
in
the
Act
)
or
the
Controller
or
chief
Clerk
in
the
Common
Bench
or
King's
Bench
,
by
Death
or
other
Case
be
ousted
of
their
Office
,
the
King
,
with
the
consent
of
the
great
Men
,
&c.
shall
put
another
fit
person
in
such
Office
.
From
whence
the
Plaintiff's
Counsel
would
have
inferred
,
That
the
King
had
a
right
to
grant
this
Office
,
and
that
this
Act
was
declaratory
of
such
his
Right
;
and
that
all
the
Grants
from
the
Chief
Justices
ever
since
that
Act
,
were
but
Usurpations
on
the
Crown
;
and
that
no
Usage
of
granting
it
by
the
Chief
Justices
,
could
prevail
against
the
King's
Right
.
To
this
it
was
replied
,
That
the
Act
was
repealed
,
as
did
appear
by
the
Record
it self
,
as
well
as
by
their
own
Copy
produced
.
And
for
a
further
Answer
,
't
was
said
,
That
the
Office
in
question
was
not
the
Office
mentioned
in
that
Act
,
for
that
Act
mentions
the
chief
Clerk
of
the
King's
Bench
,
which
is
the
Clerk
of
the
Crown
,
and
so
called
in
the
2
H.
4.
the
Statute
against
Extortion
;
and
he
is
in
reality
the
chief
Clerk
in
that
Court
,
and
hath
precedency
of
this
Officer
both
in
Court
and
elsewhere
:
And
that
this
Officer
is
not
called
chief
Clerk
in
the
King's
Bench
,
altho'
he
is
the
chief
for
inrolling
of
Pleas
Civil
in
that
Court
:
And
the
constant
.
Usage
explains
the
meaning
of
that
Act.
And
that
the
Officer
called
chief
Clerk
was
meant
to
be
the
Clerk
of
the
Crown
;
for
that
that
Office
hath
been
always
granted
by
Letters
Patents
,
according
to
that
Act
:
And
the
Office
in
question
was
never
enjoyed
one
day
by
virtue
of
a
Grant
from
the
Crown
.
The
Defendants
did
further
insist
,
That
it
was
a
Scandalous
Imputation
upon
all
those
chief
Justices
,
who
were
Persons
of
Probity
and
Virtue
,
and
had
clear
Reputations
,
to
surmise
that
they
imposed
and
usurped
upon
the
Crown
,
as
they
must
all
have
done
,
if
the
right
of
granting
this
Place
be
in
the
King
:
And
Sir
Robert
Heath
,
that
was
the
King's
Attorney
,
took
a
Grant
of
the
Office
in
question
from
the
Chief
Justice
;
and
upon
his
Admittance
,
the
right
of
the
Chief
Justice
to
grant
it
is
affirmed
upon
Record
.
Then
all
this
Evidence
on
both
sides
being
given
,
and
the
same
being
strong
on
the
Defendants
behalf
,
the
Court
proposed
to
the
Plaintiff's
Counsel
to
be
Nonsuit
,
which
they
would
not
,
but
prayed
the
Court
to
direct
the
Jury
,
some
of
them
saying
that
they
would
take
another
Course
:
And
then
the
Court
did
briefly
sum
up
the
same
,
and
particularly
the
Evidence
of
the
Act
,
15
Edw.
3.
and
what
was
urged
from
it
by
the
Plaintiff
,
and
the
Answers
made
thereto
,
and
left
the
Matter
to
the
Jury
upon
the
whole
.
The
Jury
withdrew
,
and
after
some
time
,
gave
a
Verdict
for
the
Defendants
.
Upon
this
Verdict
the
Counsel
for
the
Plaintiff
prayed
leave
to
bring
in
a
Bill
of
Exceptions
,
and
produced
in
Court
,
and
tendred
to
the
three
Judges
to
be
sealed
,
a
Parchment
Writing
in
form
of
such
a
Bill
;
in
which
,
after
a
Recital
of
the
Declaration
,
and
Issue
in
the
Cause
,
't
is
alledged
,
That
the
Plaintiff's
Counsel
produced
in
Evidence
the
Grant
of
the
Office
to
the
Plaintiff
;
and
that
they
shewed
to
the
Court
and
Jury
,
that
the
Office
is
of
the
Grant
of
the
Crown
:
And
that
to
make
out
the
Right
of
King
Charles
the
Second
to
grant
this
Office
to
the
Plaintiff
,
they
gave
in
Evidence
the
15
Edw.
3.
which
in
the
Bill
is
set
out
at
large
(
and
is
in
Substance
,
as
is
before
set
forth
.
)
And
't
is
further
alledged
in
the
Bill
,
That
the
Justices
refused
to
allow
,
admit
,
and
receive
the
Allegations
and
Matters
given
in
Evidence
,
as
sufficient
to
prove
the
Plaintiff's
Title
to
this
Office
,
by
reason
whereof
the
Jury
found
,
That
the
Defendant
did
not
disseize
the
Plaintiff
;
and
prays
that
the
Justices
would
put
their
Seals
to
it
,
according
to
the
Statute
of
Westminster
2.
cap.
31.
The
Justices
upon
reading
this
Bill
,
did
refuse
to
Seal
it
,
1.
Because
't
is
asserted
therein
,
That
the
Plaintiff's
Counsel
did
show
that
this
Office
was
of
the
Gift
and
Grant
of
the
King
,
whensoever
it
should
be
void
;
whereas
there
was
no
such
Evidence
to
show
any
such
Right
in
the
King
offered
,
or
pretended
to
,
besides
the
Patent
in
question
,
and
the
Act
of
Edw.
3.
2.
That
the
Judges
refused
to
allow
,
admit
,
and
receive
the
Allegations
and
Matters
given
in
Evidence
for
the
Plaintiff
,
as
sufficient
to
maintain
his
Title
;
whereas
they
were
given
in
Evidence
and
considered
;
and
if
it
be
meant
,
as
a
sufficient
Evidence
to
controul
and
over-rule
all
other
,
that
doth
not
belong
to
the
Court
in
Trials
to
determine
,
unless
referred
to
them
upon
demurrer
to
Evidence
,
but
is
the
proper
business
of
the
Jury
;
and
if
the
Party
be
aggrieved
,
the
Remedy
is
an
Attaint
.
Nor
can
it
be
pretended
that
the
Defendants
Evidence
was
admitted
to
over-rule
the
Record
produced
,
because
no
Objection
was
made
to
the
Defendants
Evidence
at
the
Trial
,
and
the
same
was
all
given
before
the
Record
of
15
Ed.
3.
was
produced
,
and
consequently
the
Jury
must
consider
the
force
of
it
;
for
Evidence
on
both
sides
being
given
,
by
the
Law
of
England
,
the
Decision
of
the
Right
belongs
to
the
Jury
;
and
the
Act
of
Edw.
3.
being
repealed
,
't
is
no
Matter
of
Law
,
but
the
most
which
could
be
made
of
it
,
was
,
that
it
was
Evidence
,
which
must
be
left
to
the
Jury
,
together
with
the
Defendants
Evidence
.
But
no
Bill
of
Exception
will
lye
in
such
a
Case
by
the
Statute
,
when
the
Evidence
given
is
admitted
as
Evidence
,
and
left
to
a
Jury
;
and
where
no
Opposition
was
made
to
the
Defendants
Evidence
,
as
here
in
this
Case
;
and
therefore
in
this
Case
a
Bill
of
Exception
could
not
be
warrantable
,
because
the
Plaintiff's
Evidence
was
not
refused
or
over-ruled
;
nor
was
the
Defendant's
Evidence
fit
to
be
rejected
,
or
so
much
as
opposed
by
the
Plaintiff
.
And
as
to
the
Allegations
made
by
the
Counsel
,
and
not
proved
,
those
never
could
be
an
Exception
.
And
for
these
and
other
Reasons
the
Judges
refused
to
Seal
their
Bill
.
Upon
this
a
Writ
of
Error
is
brought
,
and
a
Petition
was
exhibited
to
the
Lords
Spiritual
and
Temporal
in
Parliament
assembled
,
in
the
Name
of
the
Lady
Isabella
Dutchess
of
Grafton
,
and
William
Bridgman
her
Trustee
,
showing
that
King
.
Charles
the
Second
granted
the
Office
in
question
to
W.
B.
for
the
Lives
of
Henry
Earl
of
Arlington
,
Henry
Duke
of
Grafton
,
and
of
the
Petitioner
the
Lady
Isabella
in
Trust
for
the
Duke
,
his
Executors
and
Administrators
,
to
commence
after
the
Death
of
Sir
Robert
Henly
;
that
upon
the
death
of
Sir
Robert
Henly
,
the
Petitioner
by
virtue
of
the
said
Grant
,
was
well
intituled
to
the
said
Office
,
but
was
interrupted
in
receiving
the
Profits
by
Rowland
Holt
Esq
;
Brother
to
the
Lord
Chief
Justice
Holt
,
and
by
Edward
Coleman
Gent.
who
pretended
to
be
admitted
thereto
by
some
Grant
from
the
Chief
Justice
;
that
thereupon
an
Assize
was
brought
for
the
said
Office
,
which
came
to
Trial
;
and
the
Petitioners
Counsel
insisted
upon
an
Act
of
Parliament
,
proving
the
King
to
have
the
Right
of
granting
the
said
Office
,
which
the
Judges
would
not
admit
to
be
sufficient
to
prove
the
King's
Right
to
grant
the
same
.
That
the
Petitioners
Counsel
did
thereupon
pray
the
benefit
of
a
Bill
therein
to
be
allowed
,
and
sealed
by
the
Judges
according
to
Law
.
And
the
Petitioner's
Counsel
,
relying
upon
the
said
Act
of
Parliament
as
sufficient
proof
of
the
King
's
Right
,
duly
tendred
a
Bill
of
Exceptions
before
Judgment
in
the
Assize
,
which
the
Judges
upon
the
Trial
said
they
would
Seal
,
yet
when
tendred
to
them
in
Court
before
Judgment
,
would
not
Seal
the
same
.
Thereupon
Judgment
was
entred
against
the
Petitioners
Title
in
the
Assize
by
default
of
the
Judges
not
allowing
and
sealing
the
said
Bill
,
according
to
the
Duty
of
their
Office
by
Law
,
whereby
they
are
hindred
from
making
the
Matter
of
the
said
Bill
part
of
the
Record
of
the
said
Judgment
now
brought
and
depending
before
your
Lordships
,
upon
a
Writ
of
Error
in
Parliament
,
for
reversing
the
said
Judgment
in
the
Assize
,
and
so
are
precluded
from
having
the
full
benefit
of
the
Law
by
the
said
Writ
of
Error
,
to
examine
,
reverse
,
and
annul
the
said
Judgment
:
Wherefore
the
Petitioners
prayed
that
their
Lordships
would
be
pleased
to
order
the
said
Judges
,
or
some
of
them
,
to
Seal
the
said
Bill
of
Exceptions
,
to
the
end
the
said
Case
might
(
as
by
Law
it
ought
)
come
intirely
before
their
Lordships
for
Judgment
,
&c.
Upon
reading
this
Petition
,
't
was
ordered
that
the
Lord
Chief
Justice
,
and
the
rest
of
the
Judges
of
the
Court
of
King's
Bench
,
should
have
Copies
of
the
Petition
,
and
put
in
their
Answer
thereunto
in
Writing
on
.....
next
.
At
the
Day
appointed
there
was
deliver'd
an
Answer
in
these
,
or
the
like
words
:
The
Answer
of
William
Dolben
,
William
Gregory
,
and
Giles
Eyre
Knights
,
three
of
their
Majesties
Justices
,
assigned
to
hold
Pleas
in
their
Court
of
King's
Bench
at
Westminster
,
to
the
Petition
of
the
most
noble
Isabella
Dutchess
of
Grafton
,
and
William
Bridgman
,
exhibited
by
them
to
your
Lordships
.
THese
Respondents
by
Protestation
not
owning
or
allowing
any
of
the
Matters
of
the
Petition
to
be
true
,
as
they
are
therein
alledged
,
and
saving
to
themselves
the
benefit
of
all
the
several
Statutes
herein
after
mentioned
,
and
all
the
Right
they
have
,
as
Members
of
the
Body
of
the
Commons
of
England
,
to
defend
themselves
upon
any
Trial
that
may
be
brought
against
them
,
for
any
thing
done
contrary
to
their
Duty
,
as
Judges
,
according
to
the
due
Course
of
the
Common
Law
,
which
Right
they
hold
themselves
obliged
to
insist
upon
,
in
answer
to
the
said
Petition
,
think
themselves
bound
to
shew
,
and
offer
to
your
Lordships
consideration
,
That
the
Petition
is
a
Complaint
against
them
for
refusing
to
Seal
a
pretended
Bill
of
Exceptions
,
contrary
to
a
Statute
in
that
behalf
,
as
the
Petition
pretends
,
without
setting
forth
the
tenour
of
the
said
Statute
,
or
what
that
pretended
Bill
was
;
whereas
that
Statute
is
the
Statute
of
Westminster
2.
cap.
31.
and
doth
enact
,
That
if
any
impleaded
before
any
Justices
,
doth
offer
an
Exception
,
and
pray
the
Justices
to
allow
the
same
,
and
they
refuse
so
to
do
,
the
Party
offering
the
Exception
,
is
thereby
to
write
it
,
and
pray
the
Justices
to
Seal
it
,
which
they
,
or
one
of
them
,
are
thereby
enjoyned
to
do
:
So
that
if
the
pretended
Bill
was
duly
tendred
to
these
Respondents
,
and
was
such
as
they
were
bound
to
Seal
,
these
Respondents
are
answerable
only
for
it
by
the
Course
of
the
Common
Law
,
in
an
Action
to
be
brought
on
that
Statute
,
which
ought
to
be
tried
by
a
Jury
of
Twelve
honest
and
lawful
Men
of
England
,
by
the
Course
of
the
Common
Law
,
and
not
in
any
other
manner
.
And
the
Respondents
further
shew
,
and
humbly
offer
to
your
Lordships
consideration
,
That
the
Petition
is
a
Complaint
in
the
nature
of
an
Original
Suit
,
charging
those
Respondents
with
a
Crime
of
a
very
high
Nature
,
in
acting
contrary
to
the
Duty
of
their
Office
,
and
so
altogether
improper
for
your
Lordships
Examination
or
Consideration
,
not
being
any
more
triable
by
your
Lordships
then
every
Information
or
Action
for
breach
of
any
Statute
Law
is
,
all
which
Matters
are
by
the
Common
Law
,
and
Justice
of
the
Land
,
of
Common
Right
to
be
tried
by
a
Jury
.
And
the
Petition
is
wholly
of
a
new
Nature
,
and
without
any
Example
or
Precedent
,
being
to
compel
Judges
,
who
are
by
the
Law
of
the
Land
to
act
according
to
their
own
judgments
,
without
any
Constraint
or
Compulsion
whatsoever
,
and
trenches
upon
all
Mens
Rights
and
Liberties
,
tending
manifestly
to
destroy
all
Trials
by
Jury
.
And
it
is
further
manifest
,
That
this
Complaint
is
utterly
improper
for
your
Lordships
Examination
,
for
that
your
Lordships
cannot
apply
the
proper
and
only
Remedy
which
the
Law
hath
given
the
Party
in
this
Case
,
which
is
by
awarding
Damages
to
the
Party
injured
(
if
any
Injury
be
done
)
for
these
are
only
to
be
assessed
by
a
Jury
.
And
they
,
these
Respondents
,
are
so
far
from
apprehending
they
have
done
any
wrong
to
the
Petitioners
in
this
Matter
,
that
they
humbly
offer
,
with
your
Lordships
leave
,
to
wave
any
Priviledge
they
have
,
as
Assistants
to
this
Honourable
House
,
and
appear
gratis
to
any
Suit
that
shall
be
brought
against
them
,
in
Westminster-hall
,
touching
the
Matter
complained
of
in
the
Petition
.
And
they
further
,
with
all
humility
,
offer
to
your
Lordships
Consideration
,
That
as
they
are
Judges
,
they
are
under
the
Solemn
Obligation
of
an
Oath
to
do
Justice
(
without
respect
of
Persons
)
and
are
to
be
supposed
to
have
acted
in
this
Matter
with
,
and
under
a
due
regard
to
that
Sacred
Obligation
;
and
therefore
to
impose
any
thing
contrary
upon
them
,
may
endanger
the
breaking
of
it
,
which
they
humbly
believe
your
Lordships
will
be
tender
of
.
And
they
further
humbly
shew
to
your
Lordships
,
That
by
a
Statute
made
in
the
25th
of
Edw.
3.
cap.
4.
it
is
enacted
,
That
from
thenceforth
none
shall
be
taken
by
Petition
or
Suggestion
to
the
King
,
or
his
Councel
,
unless
by
Indictment
or
Presentment
of
good
and
lawful
People
of
the
Neighbourhood
,
or
by
Process
by
Writ
Original
at
Common
Law
;
and
that
none
shall
be
put
out
of
his
Franchise
or
Freehold
,
but
by
the
Course
of
the
Common
Law
.
And
by
another
Statute
in
the
28th
of
Edw.
3.
cap.
3.
it
is
expresly
provided
that
no
Man
shall
be
put
out
of
his
Lands
and
Tenements
,
nor
imprisoned
or
disinherited
but
by
due
Process
of
Law
.
And
by
another
Statute
made
in
the
42
Edw.
3.
cap.
3.
it
is
enacted
,
That
no
Man
shall
be
put
to
answer
,
without
Presentment
before
Justices
,
or
Matter
of
Record
on
due
Process
and
Original
Writ
,
according
to
the
old
Law
of
the
Land
.
And
the
Respondents
further
say
,
That
inasmuch
as
the
Petition
is
a
Complaint
,
in
the
nature
of
an
Original
Cause
for
a
supposed
Breach
of
an
Act
of
Parliament
;
which
Breach
(
if
any
be
)
is
only
examinable
and
triable
by
the
Course
of
the
Common
Law
,
and
cannot
be
so
in
any
other
manner
,
and
is
in
the
Example
of
it
dangerous
to
the
Rights
and
Liberties
of
all
Men
,
and
tends
to
the
Subversion
of
all
Trials
by
Juries
,
these
Respondents
conceive
themselves
bound
in
Duty
(
with
regard
to
their
Offices
,
and
in
Conscience
to
the
Oaths
they
have
taken
)
to
crave
the
benefit
of
defending
themselves
touching
the
Matter
complained
of
in
the
Petition
,
by
the
due
and
known
Course
of
the
Common
Law
;
and
to
rely
upon
the
aforesaid
Statutes
,
and
the
Common
Right
they
have
of
Free-born
People
of
England
,
in
Bar
of
the
Petitioners
any
further
proceeding
upon
the
said
Petition
,
and
humbly
pray
to
be
dismissed
from
the
same
.
Then
it
was
after
Debate
ordered
,
That
Counsel
be
heard
at
the
Bar
of
the
House
on
the
said
Petition
.
And
afterwards
upon
the
Day
appointed
for
the
hearing
of
Counsel
,
it
was
insisted
on
,
in
the
behalf
of
the
Petitioners
,
That
here
was
a
Right
,
and
a
Right
proved
,
and
no
ways
to
come
at
it
but
this
;
that
if
a
Bill
of
Exceptions
be
tendred
and
refused
,
this
House
can
command
them
to
do
it
;
that
this
proceeding
of
the
Judges
is
to
stifle
the
Matter
of
Law
;
the
Writ
upon
the
Statute
must
be
returnable
here
,
and
cannot
be
otherwise
;
that
this
follows
the
Judgment
into
Parliament
;
that
this
House
is
to
judge
of
every
thing
belonging
to
that
Judgment
;
that
if
this
cannot
be
done
,
there
will
be
a
failure
of
Justice
;
that
there
have
been
Writs
of
Error
upon
Judgments
,
with
the
Bill
of
Exceptions
annexed
;
that
Damages
to
be
recovered
in
an
Action
,
gives
no
Reparation
for
the
Office
;
that
the
Action
must
be
brought
before
the
Judges
,
and
so
it
must
be
a
Dance
in
a
Circle
;
that
as
to
the
Judges
Oaths
,
the
Justices
of
Peace
are
upon
their
Oaths
,
and
yet
they
may
be
committed
;
that
this
is
not
fit
for
a
Jury
to
try
,
Whether
the
Judges
have
done
well
or
ill
in
refusing
to
Seal
this
Bill
of
Exceptions
:
This
Refusal
is
the
way
to
keep
the
Law
within
the
Bounds
or
Walls
of
Westminster-hall
,
and
effectually
to
prevent
its
ever
coming
hither
;
that
this
was
not
a
Complaint
of
the
Judges
;
that
as
yet
they
would
not
accuse
them
of
a
Crime
,
they
only
said
,
fac
hoc
&
vive
;
that
the
Court
of
King's
Bench
below
doth
the
same
thing
to
the
Judges
in
Ireland
;
they
command
others
,
and
ought
to
be
commanded
;
that
they
themselves
send
Mandatory
Writs
,
as
the
Cases
are
in
Yelvert'
&
Cro.
Car.
That
the
Lords
had
directed
the
Judges
in
many
things
;
and
so
they
did
in
Jeffrey
Stanton's
Case
;
that
by
Command
under
the
Privy
Seal
things
have
been
done
,
which
otherwise
would
not
;
and
my
Lord
Shaftsbury
was
remanded
to
the
Tower
upon
the
Authority
of
that
Case
,
15
Edw.
3.
the
Statute
says
that
the
Peers
shall
Examine
;
for
by
great
Men
are
meant
the
Peers
.
Then
were
urged
certain
Cases
,
where
the
Lords
had
commanded
the
Chancery
to
proceed
speedily
,
and
to
give
Judgment
,
&c.
Earl
of
Radnor's
Case
;
Englefield
and
Englefield
,
and
other
like
Cases
were
quoted
;
and
from
thence
they
argued
the
Power
of
the
Lords
to
command
the
Judges
to
do
the
thing
desired
.
'T
was
argued
on
the
other
side
against
the
Petition
to
this
effect
,
That
this
was
a
Cause
of
great
consequence
,
in
respect
of
the
Persons
concerned
,
as
also
of
the
Subject
Matter
,
it
being
the
Complaint
of
a
Noble
Peeress
against
three
of
the
Judges
,
before
whom
she
was
lately
a
Suitor
;
and
concerning
the
Jurisdiction
of
this
House
:
That
this
Petition
was
the
most
artificial
which
could
be
contrived
to
hinder
the
Justice
of
the
Law
,
and
to
procure
a
Determination
in
prejudice
of
Two
hundred
thirty
five
years
enjoyment
;
that
it
is
designed
to
get
a
Cause
to
be
heard
and
adjudged
on
a
Writ
of
Error
by
the
Evidence
onone
side
only
,
or
rather
by
that
which
was
no
Evidence
at
all
,
if
the
Copy
produced
at
the
Trial
was
true
:
for
now
upon
the
return
of
what
they
desire
,
nothing
of
the
Defendants
Evidence
would
or
could
appear
.
When
a
Bill
of
Exceptions
is
formed
upon
the
Statute
,
it
ought
to
be
upon
some
point
of
Law
,
either
in
admitting
or
denying
of
Evidence
,
or
a
Challenge
,
or
some
Matter
of
Law
arising
upon
Fact
not
denied
,
in
which
either
Party
is
over-ruled
by
the
Court.
If
such
Bill
be
tendred
,
and
the
Exceptions
in
it
are
truly
stated
,
then
the
Judges
ought
to
set
their
Seal
,
in
testimony
that
such
Exceptions
were
taken
at
the
Trial
:
But
if
the
Bill
contain
Matters
false
or
untruly
stated
,
or
Matters
wherein
they
were
not
over-ruled
,
then
they
are
not
obliged
to
affix
the
Seal
;
for
that
would
be
to
command
them
to
attest
a
falsity
;
a
Bill
is
not
to
draw
the
whole
Matter
into
Examination
again
;
't
is
only
for
a
single
point
;
and
the
truth
of
it
can
never
be
doubted
after
the
Bill
is
sealed
;
for
the
adverse
Party
is
concluded
from
averring
the
contrary
,
or
supplying
an
Omission
in
it
.
This
Bill
was
without
Foundation
;
the
Plaintiff
was
not
over-ruled
in
any
one
Point
of
Law
:
'T
is
true
,
the
Counsel
desired
the
Opinion
of
the
Court
after
all
the
Defendant's
Evidence
had
been
heard
,
concerning
their
Record
,
and
the
Judges
did
declare
,
that
they
thought
it
did
not
extend
to
the
Office
in
question
,
but
to
the
Clerk
of
the
Crown
,
who
is
the
chief
Clerk
in
Court
,
and
hath
precedency
;
and
the
Grant
of
that
Office
by
the
King
,
both
before
and
since
that
supposed
Act
,
proves
that
to
be
meant
,
and
not
the
Office
in
question
,
which
hath
always
been
granted
by
the
Chief
Justice
:
and
this
was
afterwards
left
to
the
Jury
.
Here
was
no
cause
for
a
Bill
of
Exceptions
,
the
Judges
at
the
Counsels
desire
gave
their
Opinion
upon
the
thing
,
but
did
not
over-rule
them
;
for
that
the
Act
being
repealed
,
could
make
no
Point
of
Law
,
but
only
be
Evidence
for
the
Jury
to
consider
.
Besides
,
this
Act
,
tho'
repealed
,
is
inserted
in
the
Bill
as
an
Act
in
force
;
And
if
an
Act
be
set
out
,
and
no
repeal
appears
,
it
must
be
understood
to
be
in
force
;
and
if
the
Bill
had
been
sealed
,
it
must
have
been
taken
as
in
force
,
and
the
Defendants
could
not
here
upon
the
Writ
of
Error
have
shewn
the
repeal
,
which
was
in
the
17
Edw.
3.
and
appeared
so
upon
the
Evidence
;
from
whence
't
was
inferred
,
That
this
Bill
was
too
artificial
.
If
any
point
of
Law
had
arisen
upon
the
whole
Evidence
(
and
a
particular
point
there
was
none
)
the
whole
ought
to
have
been
inserted
in
the
Bill
,
or
at
least
all
that
which
concerned
that
Matter
.
If
this
should
be
allowed
,
't
would
be
in
the
power
of
any
Counsel
to
destroy
any
Verdict
;
as
in
case
of
a
Title
by
Descent
from
Father
to
Son
,
and
a
Will
of
the
Father
had
been
produced
and
proved
at
the
Trial
,
and
a
Bill
had
been
sealed
,
only
shewing
the
Seisin
and
Descent
,
the
Son
must
prevail
,
tho'
he
had
no
Title
.
This
is
enough
to
shew
that
the
Judges
are
not
obliged
;
nay
,
are
obliged
,
not
to
Seal
this
Bill
.
Then
it
was
argued
,
That
the
present
Complaint
is
beneath
the
Honour
,
and
besides
the
Jurisdiction
of
the
House
of
Peers
;
that
this
was
a
Complaint
of
a
Default
in
the
Judges
,
which
cannot
be
tried
in
this
place
;
that
MagnaCharta
was
made
for
them
as
well
as
for
others
;
that
if
they
offend
against
any
Rule
of
the
Common
Law
,
or
particular
Statute
,
whether
in
their
Personal
behaviour
,
or
as
Judges
,
they
are
triable
only
by
their
Peers
;
that
Peers
are
only
such
qui
pari
conditione
&
lege
vivunt
;
that
the
Crown
and
Constitution
of
England
had
so
far
exalted
their
Lordships
in
their
State
and
Condition
,
that
't
is
beneath
them
to
judge
or
try
Commoners
;
that
all
Powers
and
Priviledges
in
this
Kingdom
,
even
the
highest
,
are
circumscrib'd
by
the
Law
,
and
have
their
limits
:
That
this
is
a
Complaint
of
a
great
Crime
in
the
Judges
,
a
Breach
of
their
Oaths
,
and
with
the
insinuation
of
Partiality
to
one
of
themselves
;
which
if
true
,
incurs
loss
of
their
Offices
,
and
Forfeiture
of
their
Estates
by
Fine
,
and
of
their
Liberty
by
Imprisonment
;
and
all
this
to
the
King
;
besides
Damages
to
the
Party
grieved
;
and
therefore
it
concerns
them
to
have
the
benefit
of
the
Law
.
That
this
comes
not
regularly
into
the
House
;
't
is
not
any
matter
of
Advice
to
the
King
,
nor
of
Priviledge
,
nor
of
Contempt
to
this
Court
,
because
the
Matter
complained
of
was
before
any
Judgment
below
,
or
any
Jurisdiction
could
be
attached
here
,
by
pretence
of
the
Writ
of
Error
.
'T
is
brought
hither
by
way
of
Complaint
for
a
supposed
Miscarriage
in
Westminster-hall
,
in
a
private
Cause
between
Bridgman
and
Holt
,
two
Commoners
:
It
presumes
the
Lords
to
be
proper
Judges
in
the
first
Instance
,
for
the
hearing
and
punishing
of
all
Offences
committed
by
the
Judges
,
and
that
in
a
Summary
way
upon
a
Petition
,
and
without
that
due
Process
of
Law
,
which
is
established
under
our
Government
.
Either
this
Refusal
is
punishable
,
or
not
;
If
not
,
the
Petition
ought
to
be
rejected
:
If
it
be
,
't
is
either
by
the
Common
Law
,
or
by
Act
of
Parliament
;
but
neither
do
warrant
this
Practise
of
Petitioning
;
and
the
old
Law
is
that
,
which
past
Ages
have
approved
,
and
that
by
which
Justice
is
to
be
administred
;
and
whatsoever
is
done
by
way
of
Judgment
in
a
different
manner
than
the
Law
allows
,
is
against
that
Law
.
The
proceeding
in
this
manner
is
against
the
Consent
of
the
Respondents
,
for
they
have
Pleaded
to
the
Jurisdiction
of
this
House
as
to
this
matter
,
&c.
and
therefore
it
differs
from
all
Cases
,
where
the
Parties
concerned
have
Answered
the
Complaint
,
and
thereby
submitted
the
same
to
an
Examination
;
and
this
will
prevent
the
force
of
many
presidents
which
may
be
Cited
on
this
occasion
.
Some
Persons
perhaps
have
from
a
confidence
of
Success
,
or
from
a
slavish
Fear
,
or
private
Policy
,
forborn
to
Question
the
Power
of
their
Superiors
;
but
the
Judges
must
betray
their
Reputation
and
their
Knowledge
of
the
Laws
,
if
they
should
own
a
Jurisdiction
,
which
former
times
and
their
Predecessors
were
unacquainted
with
.
'T
is
necessary
to
answer
the
pretence
of
a
failure
of
Justice
,
in
case
this
method
be
Rejected
;
and
therefore
it
must
be
observed
,
That
our
Law
knows
nothing
of
extraordinary
means
to
redress
a
Mischief
,
but
that
upon
a
defect
of
ordinary
ones
,
recourse
is
to
be
had
to
the
Legislature
,
and
to
that
only
,
either
to
explain
and
correct
in
reference
to
things
past
,
or
to
provide
remedies
for
the
future
.
But
here
is
a
common
easie
means
of
relief
,
if
there
had
been
occasion
.
By
the
Statute
of
Westminster
,
2
cap.
31.
In
case
the
Judge
refuses
,
then
a
Writ
to
Command
him
,
which
is
to
issue
out
of
Chancery
,
quod
apponat
sigillum
suum
;
and
then
a
Writ
to
own
or
deny
his
Seal
.
By
2
Inst.
426.
the
party
grieved
by
the
denial
,
may
have
a
Writ
upon
the
Statute
,
Commanding
the
same
to
be
done
,
juxta
formam
Statuti
,
Reg.
182.
Fitch
.
Natura
brevium
,
21.
and
11
Hen.
4.51
,
62
,
63.
there
's
the
form
of
the
Writ
set
out
at
large
.
It
recites
a
surmise
of
an
Exception
taken
and
over-ruled
,
and
it
follows
vobis
precipimus
,
quod
si
ita
est
,
tunc
sigilla
vestra
apponatis
.
Si
ita
,
't
is
conditional
,
if
the
Bill
be
true
and
duly
tendered
,
then
this
Writ
,
and
if
it
be
returned
,
quod
non
ita
est
,
then
an
Action
for
a
false
return
,
and
thereupon
the
surmise
will
be
tried
,
and
if
found
to
be
so
,
Damages
,
and
upon
such
a
Recovery
,
a
peremptory
Writ
Commanding
the
same
;
that
the
Law
is
thus
,
seems
plain
;
tho'
no
precedent
can
be
shewn
of
such
a
Writ
't
is
only
for
this
Reason
,
because
no
Judge
did
ever
refuse
to
Seal
a
Bill
of
Exceptions
,
and
none
was
ever
refused
,
because
none
was
ever
tendred
like
to
this
,
so
artificial
and
groundless
:
But
that
such
Actions
lie
upon
this
Statute
,
were
Cited
Regist.
174.
Nat.
Br.
10.
and
they
are
called
Attachments
,
and
Damages
shall
be
to
the
Party
and
a
Fine
to
the
King
;
so
it
is
in
all
Cases
of
Statute
Laws
,
which
do
either
prohibit
or
Command
the
doing
of
a
thing
for
the
advantage
of
any
person
,
such
person
,
if
injured
by
a
disobedience
to
that
Law
is
intitled
to
an
Action
,
tho'
the
Statute
doth
not
in
express
words
give
one
.
2
Inst.
55.74.118.131
.
and
the
same
holds
in
judicial
proceedings
,
the
Case
of
the
Marshalseas
,
10
Rep.
75.
4
Edw.
4.37
.
and
the
same
Reason
warrants
the
Action
for
a
Scandal'
Magnat
'
:
But
perhaps
't
will
be
said
,
that
tho'
an
Action
lies
for
a
disobedience
to
this
Writ
,
yet
the
Writ
not
being
returnable
,
no
Action
lies
for
a
false
return
,
and
consequently
no
peremptory
Writ
,
and
by
consequence
there
's
no
adequate
remedy
in
case
of
an
unjust
Refusal
;
but
to
this
it
may
be
answered
,
That
the
Writ
being
Conditional
,
't
is
a
good
Answer
to
it
,
that
the
Fact
was
not
as
is
surmised
,
and
that
return
will
justifie
the
Refusal
:
And
certainly
such
return
may
be
made
;
and
if
not
,
when
the
first
Writ
is
proved
to
be
true
in
all
its
Suggestions
,
by
Judgment
in
an
Action
for
not
obeying
it
,
the
same
Reason
will
warrant
a
peremptory
Writ
;
But
whether
this
be
thus
,
or
not
,
it
only
argues
an
imperfection
in
the
Law
,
proper
for
the
notice
of
the
Legislature
,
and
will
not
justifie
the
method
of
proceeding
,
now
attempted
here
in
this
place
.
It
hath
been
Objected
,
That
such
Proceedings
are
not
like
to
be
successful
,
because
Judges
still
are
to
try
those
matters
;
but
these
are
Reflections
not
Arguments
,
and
our
Constitution
is
founded
on
a
Notion
,
that
parity
of
Condition
is
the
best
Qualification
of
a
trier
;
and
here
must
be
a
Jury
to
try
the
Fact
,
and
they
are
subject
to
an
Attaint
,
if
their
Verdict
contradict
the
Evidence
:
And
no
direction
of
a
Judge
can
excuse
them
,
for
if
it
be
a
point
of
Law
,
they
are
not
oblig'd
to
find
a
special
Verdict
,
but
may
find
a
general
one
upon
their
own
peril
of
an
Attaint
.
Then.
Either
this
is
designed
as
a
Criminal
proceeding
against
the
Judges
,
in
order
to
Punishment
,
or
as
a
Civil
proceeding
,
for
to
gain
Damages
to
the
Party
,
or
else
neither
one
nor
the
other
,
but
to
have
an
Order
Commanding
the
thing
to
be
done
;
which
if
refused
,
then
to
have
them
compelled
by
Imprisonment
,
quousque
,
&c.
neither
of
the
first
are
pretended
;
and
the
last
is
not
a
Warrantble
method
,
when
the
Law
hath
prescribed
a
Writ
in
Chancery
,
and
that
's
not
prosecuted
.
Here
cannot
be
tried
the
particular
requisites
to
ground
such
an
Order
as
they
desire
,
as
whether
the
Evidence
or
Exception
as
stated
,
was
offered
at
the
Trial
,
or
if
offered
,
whether
't
was
over-ruled
,
nor
whether
the
matter
offered
were
believed
,
for
if
not
believed
,
it
makes
no
Evidence
,
and
so
can
raise
no
point
in
Law
;
There
can
be
no
Jury
impanelled
to
try
this
,
nor
can
an
Issue
be
directed
hence
for
the
trial
of
it
.
By
this
means
,
the
Judges
lose
the
benefit
of
that
legal
Trial
,
by
a
Jury
of
their
Peers
,
which
is
their
fence
and
protection
against
Power
,
Art
,
or
Surprize
;
the
best
for
indifference
and
discovery
of
Truth
.
The
Institution
of
the
Law
is
cautions
and
wise
in
its
provision
for
both
.
Challenges
are
admitted
below
;
't
is
derogatory
to
the
Honour
of
this
Court
,
to
suppose
it
necessary
here
;
but
to
have
it
in
Westminster-Hall
,
is
however
reckoned
a
Commoner's
priviledge
and
Birth-right
;
there
the
Law
is
determined
by
one
,
and
the
Fact
is
ascertained
by
another
;
here
both
are
in
the
same
hands
:
Not
that
any
Jealousie
can
be
supposed
of
mischief
by
it
in
this
House
,
but
the
practice
of
it
now
may
give
president
to
future
Reigns
and
Ages
,
in
which
there
may
be
danger
of
a
partiality
.
Below
,
there
are
by
the
Law
appointed
and
provided
particular
Terms
and
days
for
doing
Justice
,
and
they
are
certain
,
the
distances
between
them
are
known
,
according
to
the
nature
of
the
Suit
;
which
capacitates
the
parties
concerned
,
their
Agents
and
Witnesses
,
to
be
ready
,
and
there
can
be
no
surprize
.
It
must
not
be
presumed
,
That
this
House
may
err
,
but
if
any
Error
be
possible
,
't
is
impossible
for
the
Judges
to
be
relieved
,
for
these
Reasons
;
in
respect
of
the
Court
,
for
no
Address
can
be
made
in
such
case
,
but
to
the
same
persons
who
did
the
wrong
;
which
is
always
with
some
prejudice
or
disadvantage
,
because
the
party
Erring
is
to
Judge
,
if
he
himself
hath
Erred
.
Then
the
Proceedings
here
being
in
English
and
Summary
,
it
cannot
well
be
made
appear
,
what
was
the
proof
in
the
first
instance
,
no
Record
being
kept
thereof
.
Then
suppose
Evidence
be
allowed
,
which
is
none
,
the
person
against
whom
the
same
is
given
,
is
remediless
;
these
Evils
may
happen
in
the
repeating
of
this
practise
in
the
next
Reign
,
tho'
they
cannot
in
the
present
.
Then
this
method
is
not
only
against
the
general
tenor
and
frame
of
the
Common-Law
,
but
against
divers
Acts
of
Parliament
and
Declarations
of
this
House
.
Magna
Charta
,
9
Hen.
3.
cap.
29.
is
express
,
per
judicium
parium
vel
per
legem
terre
,
now
the
latter
only
refers
to
such
cases
which
are
not
Triable
,
per
jud'
par
'
:
besides
,
to
make
it
the
lex
terre
,
there
must
be
Ancient
and
continual
usage
,
22
Edw.
3.
numb
.
30.
shews
that
no
new
practice
can
make
a
Law
.
By
25
Ed.
3.
cap.
4.
't
is
Enacted
,
That
no
Man
shall
be
taken
by
Petition
or
Suggestion
to
the
King
,
or
to
his
Counsel
,
without
Presentment
,
or
by
process
or
Writ
Original
at
Common-Law
,
and
that
none
shall
be
put
out
of
his
Franchise
or
Freehold
,
but
by
due
course
of
Law
before
used
;
here
the
one
explains
the
other
;
by
Writ
or
due
course
of
Law
are
taken
for
the
same
thing
,
and
both
used
in
contradistinction
to
Petition
;
the
28
Ed.
3.
cap.
3.
is
the
same
.
Then
the
42
Edw.
3.
cap.
3.
't
is
by
due
process
and
Original
Writ
according
to
the
Old
Law
of
the
Land
;
the
1
Rich.
2.
numb
.
87.
Cott.
162.
no
Suit
to
be
determined
before
the
Lords
or
before
the
Counsel
,
but
before
the
Justices
only
.
But
the
4
Hen.
4.
cap.
23.
is
fuller
,
it
recites
,
That
in
Pleas
as
well
real
as
personal
in
the
King's
Courts
,
the
parties
be
made
to
come
upon
grievous
pain
,
sometimes
before
the
King
himself
,
sometimes
before
the
King's
Council
,
sometimes
to
the
Parliament
,
to
answer
thereof
anew
to
the
grievance
of
the
Parties
,
and
in
Subversion
of
the
Common-Law
of
the
Land
,
't
is
Enacted
,
that
after
Judgment
,
the
Parties
shall
be
in
Peace
until
the
Judgment
be
undone
by
Attaint
or
Error
;
this
is
agreed
and
amplified
,
3
Bulst.
47.115
.
Here
is
mention
even
of
the
Parliaments
Summoning
persons
to
Answer
,
in
Subversion
of
the
Laws
.
There
are
other
Statutes
not
Printed
,
as
4
Edw.
3.
numb
.
6.
Cotton's
Abridg.
7.
and
the
same
in
2
Inst.
50.
The
Lords
gave
Judgment
of
Death
without
Indictment
,
upon
some
who
were
not
their
Peers
,
and
agreed
in
full
Parliament
,
that
they
should
be
discharged
of
so
doing
for
the
future
,
and
that
it
should
not
be
drawn
in
President
,
that
the
like
should
not
be
done
on
any
but
their
Peers
;
't
is
a
Declaration
of
the
Lords
,
nay
,
't
is
an
Act
of
Parliament
,
and
penned
in
the
same
manner
,
as
29
Edw.
1.
Statute
del
Estoppel
.
at
a
Parliament
agreed
:
33
Edw.
1.
by
common
accord
,
and
9
Edw.
2.
the
King
in
Parliament
by
Advice
of
his
Council
,
and
these
are
held
to
be
Statutes
.
This
was
not
only
an
acquittal
from
the
trouble
,
but
a
clear
denial
of
the
Power
,
as
appears
by
the
words
before
,
that
they
had
assumed
upon
themselves
,
and
the
words
subsequent
,
that
the
like
should
not
be
done
again
.
The
Complaint
was
,
because
it
was
intermedling
with
Commoners
after
that
manner
.
Suppose
this
House
should
make
an
Order
upon
this
matter
,
which
is
a
Law
business
and
not
of
Equity
,
no
Execution
can
be
made
of
it
but
Commitment
.
There
is
the
15
Edw.
3.
now
insisted
on
,
Printed
in
the
Old
Statute
Book
,
but
omitted
in
this
;
't
is
in
Cotton
,
28.33
.
and
,
't
is
thus
,
the
Commons
complained
of
breaches
of
Magna
Charta
,
&c.
and
pray
remedy
,
with
this
Conclusion
,
That
every
Man
may
stand
to
the
Law
according
to
his
Condition
,
and
the
Lords
pray
,
that
Magna
Charta
may
be
observed
,
and
further
,
that
if
any
of
what
Condition
soever
,
should
break
it
,
he
should
be
adjudged
by
the
Peers
of
the
Realm
in
Parliament
,
the
next
Parliament
,
and
so
from
Parliament
to
Parliament
,
and
it
was
Enacted
accordingly
.
This
was
Specious
,
the
same
being
only
for
the
breakers
of
Magna
Charta
,
but
in
17
Edw.
3.
that
whole
Parliament
,
i.
e.
all
the
Acts
of
it
are
Repealed
;
which
Repeal
,
seems
designed
for
the
Petitioners
,
for
it
Repeals
the
supposed
Laws
which
make
both
their
Title
and
this
Jurisdiction
which
they
would
support
.
'T
is
observable
what
is
said
in
the
Repeal
,
that
the
Act
was
contrary
to
the
King's
Oath
,
in
prejudice
of
his
Crown
and
Royalty
,
and
against
the
Ancient
Law
:
And
such
is
this
,
for
here
's
no
use
of
the
King
's
Writ
,
no
Address
to
or
Command
by
the
King
for
this
Proceeding
,
nor
any
mention
of
his
name
in
the
Petition
.
By
1
Hen.
4.
cap.
14.
Appeals
in
Parliament
for
Offences
,
are
declared
against
,
as
contrary
to
Reason
and
the
Constitution
;
this
is
such
.
This
is
not
incident
to
the
Power
of
Hearing
and
Determining
upon
the
Writ
of
Error
,
because
as
was
said
before
,
it
belongs
properly
to
the
Chancery
,
to
Issue
a
Writ
Commanding
it
to
be
done
,
Si
ita
est
,
as
is
Suggested
.
By
12
Rep.
63.
the
King
himself
cannot
take
any
Cause
out
of
the
Court
where
it
depends
,
and
give
Judgment
on
it
himself
.
And
this
House
can
make
no
Order
upon
this
Petition
that
will
be
a
Record
,
as
in
Hob.
110.
The
Petition
is
in
the
name
of
a
Person
,
not
party
to
the
Record
,
which
seems
very
new
,
for
't
is
by
a
Stranger
in
the
eye
of
the
Law
to
the
Cause
,
and
consequently
ought
not
to
be
joyned
in
any
legal
proceeding
,
if
this
be
such
.
This
is
not
incident
to
the
Jurisdiction
of
the
Error
;
no
more
than
Amendment
of
an
Error
in
the
Court
from
whence
the
Record
comes
,
or
the
filing
of
a
Baile
,
a
Declaration
,
or
a
Warrant
of
Attorney
,
or
the
Sueing
out
another
Process
in
Defect
of
one
lost
or
the
like
.
These
things
are
never
Examinable
in
the
Superior
Court
,
for
in
these
Collateral
things
the
other
are
intrusted
.
Here
's
no
Hardship
upon
the
Petitioner
for
he
might
have
been
Non-suite
,
or
have
given
this
Repeal'd
Act
in
Evidence
at
first
,
and
then
have
demurr'd
on
the
Defendant's
Evidence
,
or
might
have
Sued
a
Writ
on
the
Statute
of
Westminster
2.
But
suppose
this
House
should
Examine
this
matter
,
and
find
the
Petition
to
be
groundless
,
will
such
Determination
prevent
the
Judges
from
being
troubled
by
Sueing
of
the
Writ
afterwards
.
Suppose
it
E
contra
;
that
this
House
should
punish
the
Judges
and
commit
them
,
and
award
Damages
,
or
make
other
Order
in
favour
of
the
Petitioners
,
would
such
Order
bar
or
stop
the
legal
process
afterwards
;
can
any
Order
made
here
be
used
below
,
as
a
Recovery
or
Acquittal
,
as
an
Auterfoits
Convict
,
or
Auterfoits
Acquitte
.
If
there
be
any
thing
in
it
,
't
is
a
breach
of
a
Statute
Law
;
for
which
they
are
punishable
at
the
King's
Suit
;
will
the
proceeding
here
save
them
from
the
trouble
of
answering
to
an
Indictment
or
Information
for
the
same
thing
.
Then
since
a
Writ
lies
to
Command
them
to
Seal
this
Bill
,
and
since
an
Act
of
Parliament
directs
it
,
if
it
were
a
true
one
,
perhaps
it
may
be
Questionable
,
if
they
do
not
break
their
Oaths
,
in
case
they
Sign
it
in
Obedience
to
any
other
direction
.
If
they
did
it
in
Obedience
to
the
Royal
Word
,
Signet
or
Privy
Seal
,
of
the
King
their
Master
,
't
would
be
a
breach
of
their
Oath
.
Then
as
to
presidents
of
the
Exercise
of
such
a
Jurisdiction
,
none
come
near
this
:
And
abundance
of
particular
Cases
were
put
and
answered
;
but
the
considerable
one
was
Jeffery
Stanton's
Case
,
14
Edw.
3.31
.
Cot.
30.
The
Case
is
odd
,
't
is
in
Fits
.
Abridgment
,
tit
voucher
.
119.
there
is
a
Writ
directory
to
the
Judges
to
proceed
to
Judgment
,
or
to
bring
the
Record
before
the
Parliament
,
that
they
might
receive
an
Averment
,
&c.
To
this
Case
it
was
Answered
,
That
the
same
was
long
before
most
of
the
Statutes
aforementioned
,
and
in
full
Parliament
,
and
in
that
Case
Stone
would
not
agree
to
it
,
but
adhered
to
the
Law
according
to
his
Opinion
,
't
is
true
,
Shard
in
the
absence
of
Stone
,
gave
Judgment
according
to
that
Advice
,
but
a
Writ
of
Error
was
afterwards
brought
in
the
King's
-
Bench
,
and
the
Judgment
was
Reversed
,
15
Edw.
3.
B.
R.
even
contrary
to
the
Advice
of
Parliament
,
to
the
other
Judges
.
As
to
the
other
Cases
of
Property
Examined
here
,
either
the
Parties
submitted
to
Answer
,
or
they
were
at
the
Suit
or
Complaint
of
the
Commons
,
or
by
Consent
of
the
King
and
Commons
,
but
none
of
them
carry
any
resemblance
to
this
,
where
the
Judges
insist
upon
it
,
that
there
is
another
and
a
proper
Remedy
.
All
the
Cases
in
Ryley's
Placita
Parliamentaria
,
are
either
Ordinances
of
Parliament
,
or
directions
to
follow
before
the
Justices
.
But
there
's
no
President
to
warrant
this
Petition
,
and
therefore
't
was
prayed
,
that
the
Petition
might
be
Dismissed
...
.....................
.....................
And
afterwards
..............
.....................
Dominus
Rex
Versus
Walcott
.
WRit
of
Error
to
Reverse
a
Reversal
in
B.
R.
of
an
Attainder
for
Treason
,
before
Commissioners
,
&c.
at
the
Old-Baily
,
against
Walcott
;
the
Record
was
thus
,
Gulielmus
Tertius
,
Dei
Gratia
Angliae
,
Scotiae
,
Franciae
,
&
Hiberniae
,
Rex
,
fidei
Defensor
,
&c.
dilect
&
fideli
nostro
Johi
Holt
,
Militi
Capitali
justiciario
nostro
ad
placita
coram
nobis
tenend'
assign'
salutem
Quia
in
Recordo
&
Processu
ac
etiam
in
redditione
Judicii
cujusdam
Indictamenti
versus
Thomam
Walcott
,
nuper
de
London
Generosum
modo
defunct'
pro
quibusdam
altis
perditionibus
personam
Domini
Caroli
Secundi
nuper
Regis
Angliae
tangent'
modo
indictat
fuit
&
superinde
per
quand'
Jur
superinde
in
t'
prefat'
nuper
Regem
&
prefat
'
Thomam
Walcott
,
capt'
coram
Justic'
dict'
nuper
Regis
ad
Goalam
Deliberand
'
assign'
convict'
exist'
&
Judicium
superinde
reddit'
fuit
pro
prefat'
nuper
Rege
versus
prefat
'
Thomam
Walcott
,
ut
dicitur
,
quae
quidem
Recordum
&
Processum
predict'
causa
erroris
intervenient'
in
Curia
nostra
coram
nobis
venire
fecimus
&
Judicium
inde
in
eadem
curia
nostra
coram
nobis
reversatur
&
quia
in
reversatione
Judicii
predict'
coram
nobis
super
bre
'
de
Error'
predict'
Erro
intervenit
manifestus
ad
grave
Dampnum
cujusdam
Isabellae
Dillon
Viduae
Comitisse
Roscomon
nuper
Uxoris
Wentworth
Dillon
armig'
nuper
Comitis
Roscomon
in
Regno
nostro
Hibernico
sicut
ex
quaerela
,
sua
accepimus
.
Nos
Errorem
siquis
fuerit
modo
debito
corrigi
,
&
eidem
Isabellae
plenam
&
celerem
Justiciam
fieri
volentes
in
hac
parte
.
Vobis
mandamus
quod
si
Judicium
super
Breve
de
Errore
praedict'
reversat'
sit
,
tum
Recordum
&
Processum
praedicta
cum
omnibus
ea
tangent'
nobis
in
Parliamentum
nostrum
ad
proximam
Sessionem
vicessimo
octavo
die
instantis
Mensis
Julij
tenend'
distincte
&
aperte
mittatis
&
hoc
Breve
ut
inspect'
Record'
&
Processu
praedictis
ulterius
inde
de
assensu
Dominorum
Spritualium
&
Temporalium
in
eodem
Parliamento
existent'
pro
Errore
illo
corrigend
'
Fieri
Fac'
quod
de
Jure
&
secundum
Legem
&
consuetudinem
Regni
nostri
Angliae
fuerit
faciend'
.
Teste
Thoma
Archiepiscopo
Cantuar'
&
ceteris
,
Custodibus
&
Justiciariis
Regni
apud
Westm'
sexto
die
Julij
anno
Regni
nostri
octavo
.
Martin
.
Respons.
Johannis
Holt
Mil'
Capital'
Justiciarij
infra
nominat'
.
Record'
&
Process'
unde
infra
fit
mentio
cum
omnibus
ea
tangen'
Domino
Regi
infra
nominat'
in
presens
Parliamentum
propriis
Manubus
protuli
in
quodam
Record'
huic
Brevi
annex'
prout
interius
mihi
precipitur
.
J.
Holt.
Placita
coram
Domino
Rege
apud
Westm
'
de
Termino
Paschae
Anno
Regni
Domini
Willielmi
Tertij
nunc
Regis
Angliae
&c.
septimo
.
Rot.
3.
London
ss.
Dominus
Rex
mandavit
Justic'
suis
per
Literas
suas
Patentes
sub
magno
Sigillo
ad
inquirend'
per
Sacrum
proborum
&
legalium
hominum
Civitat
'
London
ac
aliis
viis
modis
&
mediis
quibus
melius
sciverint
aut
poterint
de
quibuscunque
Perdition'
Misprision'
Prodition'
Insurrection'
Rebellion'
&
ab
Malefact
is
Offensam
&
Injur'
quibuscunque
necnon
Justic'
suis
ad
Goalam
suam
de
Newgate
per
Civitat
'
London
de
Prison'
in
eadem
existen'
deliberand'
assign'
&
corum
cuilibet
Breve
suum
in
haec
verba
.
Gulielmus
tertius
Dei
gratia
Angliae
Scotiae
Franciae
&
Hiberniae
Rex
Fidei
Defensor
'
&c.
Justiciar'
suis
per
Literas
suas
Patentes
sub
magno
Sigillo
Angliae
confect'
ad
inquirend'
per
sacrum
proborum
&
legalium
hominum
Civitat
'
London
ac
aliis
viis
modis
&
mediis
quibus
melius
scierint
aut
poterint
de
quibuscunque
Prodition'
Misprision'
Prodition'
Insurrection'
Rebellion'
&
ab
Malefactis
Offens'
&
Injur'
quibuscunque
necnon
Justic'
suis
ad
Goalam
suam
de
Newgate
pro
Civitat
'
London
de
Prisonariis
in
eadem
existent'
deliberand'
assign'
&
corum
cuilibet
salutem
Quia
in
Recordo
&
Processu
ac
etiam
in
redditioue
judicij
cujusdam
Indictamenti
versus
Thomam
Walcott
nuper
de
London
Gen'
defunctum
pro
quibusdam
altis
perdition'
person'
Domini
Caroli
Secundi
nuper
Regis
Angliae
tangent'
unde
indictat'
est
&
superinde
per
quandam
Jur'
Patriae
inter
praefat'
Dominum
nuper
Regem
&
praefat
'
Thomam
Walcott
Capt.
coram
Justiciar'
dicti
Domini
Caroli
Secundi
nuper
Regis
Angliae
,
&c.
ad
Goalam
praedict'
deliberand'
assign'
convict'
exist'
&
judic'
superinde
reddit'
sit
ut
dicitur
Error
intervenit
manifestus
ad
grave
dampnum
Johannis
Walcott
Gen'
filij
&
haered'
praed
'
Thomae
sicut
ex
quaerela
sua
accepimus
Nos
Errorem
siquis
fuit
modo
debito
corrigi
&
eidem
Johanni
plenam
&
celerem
Justiciam
fieri
volentes
in
hac
parte
vobis
Mandamus
quod
si
Judicium
reddit'
sit
tunc
Record'
&
Process'
praedict'
cum
omnibus
ea
tangent'
nobis
sub
Sigillis
vestris
vel
un'
vestrum
distincte
&
aperte
mittat'
&
hoc
Breve
ita
quod
ea
habeamus
a
die
Paschae
in
tres
septiman'
ubicunque
tum
fuerimus
in
Anglia
ut
inspect'
Record'
&
Process'
praedict'
ulterius
inde
pro
Errore
illo
corrigend'
fieri
faciamus
quod
de
jure
&
secundum
legem
&
consuetudinem
Regni
nostri
Angliae
fuerit
faciend'
Teste
meipso
apud
Westm'
decimo
septimo
die
Martij
Anno
Regni
nostri
septimo
.
Executio
istius
Brevis
patet
in
Schedula
&
Recordo
huic
Brevi
annex'
.
Respons.
Thomae
Lane
Mil'
Major'
Civitat
'
London
ac
un'
Justic'
infrascript'
Record'
&
Process'
unde
in
Brevi
superdict'
fuit
mentio
sequit'
in
haec
verba
.
London
ss.
Memorand'
quod
per
quandam
Inquisition'
Capt'
pro
Serenissimo
Domino
Rege
apud
Justice-Hall
in
the
Old
Baily
,
London
,
in
Parochia
Sancti
Sepulchri
in
Warda
de
Faringdon
extra
London
praedict'
die
Jovis
scilicet
duodecimo
die
Julij
Anno
Regni
Domini
nostri
Caroli
Secundi
Dei
gratia
Angliae
Scotiae
Franciae
&
Hiberniae
Regis
Fidei
Defensor
'
&c.
tricesimo-quinto
coram
Willielmo
Prichard
Mil'
Majore
Civitat
'
London
,
Francisco
Pemberton
Mil'
Capitali
Justic'
Domini
Regis
de
Banco
,
&c.
ac
aliis
Sociis
suis
Justiciariis
dicti
Domini
Regis
per
Literas
Patent'
ipsius
Domini
Regis
eisdem
Justiciar'
praenominat'
&
aliis
ac
quibuscunque
quatuor
vel
plur'
eorum
sub
magno
Sigillo
dict'
Domini
Regis
Angliae
confect'
ad
inquirend'
per
sacrament'
proborum
&
legalium
hominum
de
Civ
'
London
ac
aliis
viis
modis
&
mediis
quibus
melius
scierint
aut
poterint
tam
infra
libertat'
quam
extra
per
quas
rei
veritas
melius
sciri
poterit
&
inquir'
de
quibuscunque
Prodition'
Misprision'
Prodition'
,
&c.
infra
Civitat'
praedict'
tam
infra
libertat'
quam
extra
per
quoscunque
&
qualitercunque
habit'
fact'
perpetrat'
sive
commiss'
per
quos
vel
per
que
cui
vel
quibus
quando
qualit'
&
quomodo
&
de
aliis
articulis
&
circumstant'
praemissa
&
eorum
aliquod
vel
aliqua
qualitercunque
concernen'
plenius
veritat'
&
ad
eadem
&
al'
praemissa
audiend'
&
terminand'
secundum
legem
&
consuetudinem
Regni
dicti
Domini
Regis
Angliae
assignat'
per
sacrament
'
Rich'
Alie
Arm'
&
aliorum
proborum
&
legalium
hominum
Civitat
'
London
praed'
qui
adtunc
&
ibidem
Jurat'
&
onerat'
existent'
ad
inquirend'
pro
dict'
Domino
Rege
pro
Corpore
Civitat'
predict'
extitit'
praesentat'
quod
Tho.
Walcott
nuper
de
London
Gen'
ut
falsus
Proditor
contra
illustrissimum
&
excellentissimum
Principem
Dominum
nostrum
Carolum
Secund'
Dei
grat
'
Angliae
Scotiae
Franciae
&
Hiberniae
Regem
&
Naturalem
Dominum
suum
timorem
Dei
in
Corde
suo
non
habens
nec
debit'
Ligean
'
suam
ponder
an'
sed
instigatione
Diabolica
mot'
&
seduct'
dilectsoneret
veram
debitam
&
naturalem
obedient'
quas
verus
&
fidelis
subdit'
dict'
Domini
Regis
erga
ipsum
Dominum
Regem
gereret
&
de
Jure
gerere
tenetur
penitus
subtrahens
&
totis
viribus
suis
intenden'
pacem
&
communem
tranquilitat'
hujus
Regni
Angliae
perturbare
&
guerram
&
rebellion'
contra
dictum
Dominum
Regem
suscitare
&
movere
&
gubernat'
dicti
Domini
Regis
in
hoc
Regno
Angliae
subvertere
&
dict'
Dominum
Regem
a
titulo
Honore
&
Regali
nomine
Coron'
Imperial'
Regni
sui
Angliae
deponere
&
deprivare
&
dictum
Dominum
Regem
ad
mortem
&
finalem
destruction'
adducere
&
ponere
secundo
die
Martij
Anno
Regni
Domini
Caroli
secundi
nunc
Regis
Angliae
,
&c.
tricessimo-quinto
&
diversis
ab
diebus
&
vicibus
tam
antea
quam
postea
apud
Parochiam
Sancti
Michaelis
Bassieshaw
in
Warda
de
Bassieshaw
London
malitiose
&
proditorie
cum
diversis
aliis
proditoribus
Jur'
praed'
ignot'
conspiravit
compassavit
imaginat'
fuit'
&
intendebat
dictum
Dominum
Regem
supremum
Dominum
suum
non
solum
de
Regali
statu
titulo
potestate
&
Regimine
Regni
sui
Angliae
deprivare
&
dejicere
verum
etiam
eundem
Dominum
Regem
interficere
&
ad
mortem
adducere
&
ponere
&
antiquam
gubernat'
hujus
Regni
Angliae
mutare
alterare
&
penitus
subvertere
ac
stragem
miserabilem
inter
subdit'
dict'
Domini
Regis
per
totum
Regnum
suum
Angliae
causare
&
procurare
ac
insurrection'
&
rebellion'
contradict'
Dominum
Regem
movere
&
suscitare
infra
hoc
Regnum
Angliae
&
ad
easdem
nefandissimas
prodition'
&
proditorias
compassation'
imagination'
&
proposita
suà
praed'
perimplend'
&
perficiend'
idem
Thomas
Walcott
ut
falsus
Proditor
tunc
&
ibid'
&
diversis
aliis
diebus
&
vicibus
tam
antea
quam
postea
malitiase
proditorie
&
advisate
se
assemblabat
conveniebat
&
consultabat
cum
praed'
al'
proditoribus
Jur'
praedict'
ignot'
&
cum
eisdem
tractabat
de
&
pro
eisdem
suis
proditionibus
&
proditoriis
compassation'
imagination'
&
propositis
suis
prosequend'
exequend'
&
perimplend'
quodque
idem
Thomas
Walcott
ut
falsus
proditor
malitiose
proditorie
&
advisate
tunc
&
ibidem
&
diversis
ab
diebus
&
vicibus
tam
antea
quam
postea
super
se
assumebat
&
praedict'
aliis
proditoribus
promittebat
se
fore
anxiliant'
&
assistent'
in
execution'
prodition'
&
proditor'
compassation'
imagination'
&
proposit'
sua
praedict'
perimplend'
&
perficlend'
&
easdem
nefandissimas
prodition'
&
proditor'
compassation'
imagination'
&
proposita
sua
praedict'
perimplend'
&
perficiend'
idem
Thomas
Walcott
ut
falsus
proditor'
malitiose
proditorie
&
advisate
tunc
&
ibidem
arma
videlicet
〈◊〉
〈◊〉
Anglice
Blunderbusses
,
Bumbard
'
Anglice
Carbines
,
Sclop'
Anglice
Pistols
,
&
procurabat
&
praeparabat
contra
Ligeantiae
suae
debit'
contra
pacem
dicti
Domini
nunc
Coron'
&
Dignitat'
suas
,
&c.
necnon
contra
formam
statut'
in
hujusmodi
casu
edit'
&
provis
.
&c.
per
quod
praecept'
fuit
vid'
Civitat'
praedict'
quod
non
omitt
'
&c.
quin
caperent
praefat
'
Thomam
Walcott
si
&c.
ad
respond
'
&c.
&
modo
scilicet
ad
deliberation'
Goalae
dicti
Domini
Regis
de
Newgate
tent'
per
Civitat
'
London
apud
Justice-Hall
praedict'
in
dicta
Parochia
Sancti
Sepulchri
in
Warda
de
Faringdon
extra
London
praedict'
dicto
die
Jovis
undecimo
die
Julij
anno
tricesimo
quinto
supradict'
coram
praefat
'
William
Pritchard
'
Mil'
Majore
Civitat
'
London
ac
aliis
Sociis
suis
Justiciar'
dict'
Domini
Regis
ad
Goalam
swam
de
Newgate
de
Prison'
in
ea
existen
'
deliberan'
assign'
praefat'
Justic'
dicti
Domini
Regis
prius
nominat'
per
manus
suas
propere
deliberaver'
Indictament'
praedict'
hic
in
Cur'
de
Recordo
in
formam
Juris
terminand'
,
&c.
super
quo
ad
istam
eandem
deliberation'
Goalae
dict'
Domini
Regis
de
Newgate
tent'
per
Civitat'
praedict'
apud
Justice-Hall
praedict'
dicto
die
Jovis
duodecimo
die
Julij
anno
tricesimo
quinto
supradict'
coram
praefat'
Justic'
ult'
nominat'
ven'
praed
'
Thomas
Walcott
sub
Custod
'
Dudlei
North
Mil'
&
Petri
Rich
Ar'
Vicecom'
Civitat'
praedict'
(
in
quorum
Custod
'
ex
causa
&
praedicta
praeantea
Commiss
.
fuit
)
ad
Barram
hic
duct'
in
propria
persona
sua
qui
committitur
praefat'
Vic'
Civitat
'
London
,
&c.
&
statim
de
praemissis
praedict'
in
Indictament'
praedict'
specificat'
ei
superius
imposit'
allocut'
qualit'
se
vellet
inde
acquietari
Idem
Thomam
Walcott
dicit
quod
ipse
non
est
inde
culpabl'
&
inde
de
bono
&
malo
pon'
se
super
Patriam
Ideo
immediate
ven'
inde
Jur'
,
&c.
Coram
praefat'
Justic'
ult'
nominat'
hic
&c.
&
Jur'
Jure
illius
per
praefat'
Vic'
ad
hoc
impannelat'
scil.
&c.
exact'
vener'
qui
ad
veritat'
de
praemiss
.
dicend'
elect'
triat'
&
jurat'
dicunt
super
sacrament'
suum
quod
praedictus
Tho.
Walcott
est
culpabil
J
de
alt'
prodition'
praedict'
in
Indictament'
praedict'
specificat'
ei
superius
imposit'
modo
&
forma
prout
per
Indictament'
praedict'
superius
versus
eam
supponitur
&
quod
idem
Thomas
Walcott
nulla
habuit
bona
seu
catalla
terras
sive
tenementa
ad
eorum
notic'
&
super
hoc
statim
quaesit'
est
de
praefat
'
Tho.
Walcott
si
quod
pro
se
habeat
vel
dicere
sciat
quare
Cur'
dict'
Domini
Regis
hic
ad
judicium
&
execution'
de
eo
super
veredict'
praedict'
procedere
non
debeat
qui
nihil
ulterius
dicit
praeterquam
ut
prius
dixerat
super
quo
visis
&
per
Cur'
hic
plene
intellectis
omnibus
&
singulis
praemissis
considerat'
est
per
Cur'
hic
quod
praed
'
Tho.
Walcott
ducatur
ad
Goalam
dicti
Domini
Regis
de
Newgate
unde
venit
&
ibidem
super
Bigam
penatur
&
abinde
usque
ad
furcas
de
Tyburn
trahatur
&
ibidem
per
Collum
suspendatur
&
vivens
ad
terram
prosternatur
&
quod
secreta
membra
ejus
amputentur
&
interiora
sua
extra
ventrem
suum
capiantur
&
in
ignem
ponantur
&
ibidem
comburentur
&
quod
caput
ejus
amputetur
quodque
corpus
ejus
in
quat'
partes
dividatur
ill
'
ponantur
ubi
Dominus
Rex
ea
assignare
voluit
,
&c.
per
quod
praecept'
fuit
Vic'
quod
caperent
eum
si
&c.
ad
satisfaciend
'
&c.
&
modo
scil.
die
Jovis
prox'
post
mensem
Paschae
isto
eodem
Termino
coram
Domino
Rege
nunc
apud
Westm'
ven'
quidem
Johannes
Walcott
filius
&
haeres
praedict
'
Thomae
Walcott
defunct'
de
alta
proditione
praedict'
convict'
&
attinct'
per
Benedict'
Browne
Attornat'
suum
&
habit'
audit'
Record'
praedict'
super
quo
praed
'
Thomas
convict'
&
attinct'
existit'
dicit
quod
in
Record'
&
Process
.
praedict'
ac
etiam
in
redditione
Judicij
praedict'
manifeste
est
Errat'
in
hoc
vid'
quod
apparet'
per
Record'
praedict'
quod
Judicium
reddit'
est
pro
dicto
Domino
nuper
Rege
ubi
per
leges
hujus
Regni
Angliae
Judicium
praedict'
pro
dicto
Thoma
Walcott
reddi
debuisset
&
in
eo
manifeste
est
errat'
erratum
est
etiam
in
hoc
,
viz.
quod
Crimina
in
&
per
Indictamentum
praedict'
versus
praedict
'
Thoma
imposit'
per
Leges
hujus
Regni
Angliae
incerte
dubie
&
nimis
generalit'
allegat'
existunt
quodque
idem
Indictamentum
supposuit
&
eidem
Thomae
onerat
&
imponit
crimina
diversimoda
&
toto
genere
inter
se
discrepantia
'
Quodque
Judicium
superinde
reddit'
sit
&
existit
cantrarium
Legibus
Angliae
&
minime
pronunciand'
vel
imponend'
pro
vel
super
hujusmodi
Crimina
qual'
in
Indictamentum
praedict'
supponuntur
&
in
eo
manifeste
est
Errat'
unde
Pet'
Judicium
Cur'
hic
in
praemiss'
&
quod
Judic'
&
Attinctur'
praedict'
ab
Error'
praedict'
&
al'
in
Recordo
&
Process'
praedict'
compert'
existent'
reversetur
adnulletur
&
penitus
pro
nullo
habeatur
&
quod
ipse
praedict
'
Johannes
Walcott
filius
&
haeres
praedict
'
Thomae
ad
omnia
quae
ipse
praed
'
Johannes
occasione
Judicij
&
Attinctur'
praedict'
amisit
restituatur
&
quod
Cur'
hic
procedat
ad
examinationem
tam
Record'
&
Process'
praedict'
quam
materias
superius
pro
Errore
assign'
,
&c.
&
quia
Cur'
dicti
Domini
Regis
hic
de
Judicio
suo
de
&
super
premissis
reddend'
nondum
advisatur
dies
inde
dat'
est
praefat
'
Johanni
Walcott
in
statuto
quo
nunc
&c.
in
Cro
'
Sanctae
Trinitat'
coram
Domino
Rege
ubicunque
,
&c.
de
Judicio
suo
inde
audiend
'
&c.
ad
quod
quidem
Crm'
Sancte
Trinitat'
coram
Domino
Rege
apud
Westm'
ven'
predictus
Johannes
Walcott
per
Attornat'
suum
predict'
&
ut
prius
Petit
Judicium
&
quod
Judicium
&
Attinatur
predict'
versus
predict
'
Thomam
Walcott
reddit'
ab
Error'
predict'
&
al'
in
Recordo
&
Process'
predict'
compert'
&
existen'
reversetur
adnulletur
&
penitus
pro
nullo
habeatur
&
quod
ipse
predict
'
Johannes
Walcott
filius
&
haeres
predict
'
Thomae
ad
omnia
que
ipse
idem
Johannes
occasione
Judicij
&
Attinatur
predict'
amisit
restituatur
&
quod
Cur'
hic
procedat'
ad
examination'
tam
Record'
&
Process'
predict'
quam
Materiarum
superius
pro
Errore
assign
'
&c.
And
after
many
Continuances
,
't
is
entred
thus
:
Super
quo
Vis
.
et
per
Cur'
hic
intellectis
omnibus
et
singulis
premissis
diligenterque
examinat'
Record'
et
Process'
predict'
et
Err'
per
predict
'
Johannem
Walcott
superius
assign'
et
al'
in
Record'
et
Process'
predict'
compert'
existen'
Maturaque
deliberatione
inde
prius
habita
considerat'
est
quod
Judicium
predict'
ab
Error'
predict'
et
al'
in
Record'
et
Process'
predict'
compert'
existen'
revocetur
adnulletur
et
penitus
pro
nullo
habeatur
et
quod
predict
'
Johannes
Walcott
filius
et
heres
predicti
Thomae
Walcott
ad
omnia
que
ipse
occasione
Judicij
et
Attinctur'
predict'
amisit
restituatur
et
quod
predict
'
Johannes
Walcott
eat
inde
sine
die
,
&c.
Et
super
hoc
Johannes
Trevor
Miles
Attorn'
Domini
Regis
nunc
General'
qui
pro
eodem
Domino
Rege
in
hac
parte
sequitur
coram
coram
Rege
ac
Proceribus
hujus
Regni
Angliae
hoc
predicto
Parliamento
apud
Westm'
in
Com'
Middlesex
assemblat'
in
propria
perfona
sua
ven'
et
dicit
quod
in
Record'
et
Process'
ac
etiam
in
redditione
Judicii
super
predict'
priori
Brevi
dicti
Domini
Regis
de
Errore
corrigend'
per
predict
'
Johannem
Walcott
prosecut'pro
revocatione
et
adnullatione
Judicij
predict'
versus
praedict
'
Thomam
Walcott
super
Indictamentum
predict'
pro
alta
proditione
predict'
reddit'
manifeste
est
Erratum
in
hoc
,
viz.
quod
ubi
per
Recordum
predict'
supponitur
quod
predict
'
Johannes
Walcott
posuit
loco
suo
quendam
Benedict'
Browne
Attornat'
suum
ad
prosequend'
predict'
primum
Breve
de
Errore
in
et
super
Indictament'
predict'
pro
alta
proditione
predict'
quod
tamen
Benedict'
Browne
nullum
habuit'
Warrant'
Attorn'
pro
eodem
Johanne
Walcott
de
Recordo
affilat'
ideo
in
eo
manifeste
est
Errat'
Errat'
est
etiam
in
hoc
,
viz.
quod
Record'
predict'
apparet
quod
Judicium
predict'
pro
revocatione
et
adnullatione
Judicij
predict'
versus
predict
'
Thomam
Walcott
in
forma
predict'
reddit'
redditum
fuit
pro
predict
'
Johanne
Walcott
versus
dict'
Dominum
Regem
ubi
per
Legem
terre
hujus
Regni
Angliae
Judicium
ill'
reddi
debuisset
pro
dicto
Domino
Rege
versus
eundem
Johannem
Ideo
in
eo
scil.
manifeste
est
Errat'
et
hoc
parat'
est
verificare
unde
pet'
Judicium
et
quod
Judic'
ill'
ab
Error
predict'
et
al'
in
Record'
et
Process'
predict'
existen'
revocetur
adnulletur
et
penitus
pro
nullo
habeatur
et
quod
dictus
Dominus
Rex
ad
que
omnia
ipse
occasione
revocation'
et
adnullation'
Judicij
predict'
amisit
restituatur
,
&c.
It
was
argued
on
behalf
of
the
King
,
That
there
was
no
Warrant
of
Attorney
filed
,
and
consequently
the
Reversal
was
not
regular
;
for
default
of
an
Appearance
by
the
Heir
,
who
prosecuted
the
Writ
of
Error
;
and
that
there
was
no
Day
given
to
the
Attorney
General
;
nor
was
the
Attorney
General
,
or
the
Patentee
,
a
Party
to
the
Record
,
nor
any
Plea
or
Answer
made
by
either
of
them
to
the
Assignment
of
the
Errors
.
To
this
it
was
answered
,
That
by
the
Common
Practise
in
the
Crown-Office
,
no
Warrants
of
Attorney
are
filed
,
neither
for
Defendants
upon
Indictments
,
nor
for
Plaintiffs
in
the
Writ
of
Error
;
that
it
had
not
been
known
,
within
the
Memory
of
any
Man
living
,
that
such
Warrants
were
ever
filed
:
That
there
need
no
day
to
be
given
to
the
King
,
or
the
Attorney
General
,
for
that
the
King's
Attorney
was
supposed
always
present
in
Court
,
and
the
King
cannot
be
Nonsuited
,
because
he
cannot
be
called
.
That
there
never
was
any
Answer
to
the
Assignment
of
Errors
in
such
Cases
;
That
in
Capital
Cases
there
needs
no
joyning
of
Issue
upon
pleading
Not
Guilty
.
Then
it
was
argued
,
That
there
was
no
Error
to
warrant
the
Reversal
to
the
Attainder
;
that
the
Exception
taken
to
the
Judgment
was
trivial
and
frivolous
;
that
ipso
vivente
was
not
of
necessity
to
be
inserted
;
that
never
any
Judge
was
known
to
require
that
the
Man's
Bowels
should
be
burnt
while
he
was
alive
;
that
the
same
was
impossible
to
be
executed
;
that
the
Law
never
appointed
any
Judgment
for
Treason
,
as
essential
,
besides
Drawing
and
Hanging
;
and
that
Quartering
has
been
so
long
used
,
as
to
be
accounted
part
of
the
Judgment
,
yet
't
is
not
necessary
to
make
a
good
Judgment
;
and
if
that
be
so
,
no
more
is
needful
than
Drawing
,
Hanging
,
and
Quartering
;
that
Ancient
Presidents
were
thus
short
;
Rot'
Parliament
'
3
Hen.
5.
p.
1.
n.
6.
Thomas
de
Gray
&
al'
had
been
Attainted
of
Treason
upon
a
Special
Commission
at
Southampton
,
and
the
Record
of
the
Attainder
removed
into
Parliament
,
3
Hen.
5.
and
the
Judgment
was
good
,
Thomas
de
Gray
ut
proditor
Domini
Regis
&
Regni
sui
Angliae
,
distrahatur
suspendatur
&
decapitetur
:
And
in
the
Records
,
Penes
Thes.
&
Camar'
Scacc
'
3
Hen.
7.
f.
10.
a.
't
is
detrahatur
&
suspendatur
.
And
many
other
there
are
in
that
place
to
the
same
effect
,
and
in
the
same
manner
,
Glanvil
.
lib.
3.
cap.
13.
&
Fleta
cap.
16.
And
there
is
the
Case
of
David
Prince
of
Wales
,
who
was
Drawn
,
Hang'd
,
Beheaded
,
Dismembred
and
Burnt
,
Britton
de
Treason
,
cap.
8.
p.
16.
Drawing
and
Death
is
the
Punishment
of
Treason
,
&
des
Appeles
,
c.
22.
p.
43.
to
the
same
effect
;
&
Lib.
Assis
.
30
Edw.
3.
pl.
19.
and
abundance
of
Records
were
cited
as
found
in
the
Exchequer
,
and
nothing
mentioned
in
them
but
detrahatur
&
suspend
'
.
And
then
was
cited
Rot.
Parl.
2
Hen.
6.
n.
18.
and
the
Book
1
Hen.
6.5
.
19
Hen.
6.103
.
and
1
Hen.
7.24
.
Bro.
Coron.
129.
there
is
a
Judgment
against
Humfry
Stafford
per
omnes
Justiciar
'
Angliae
,
quod
iterum
ducatur
turri
&
abinde
ponatur
super
herdillum
et
trahatur
per
London
ad
Tyburn
ibidem
suspendatur
et
ante
mortem
corda
scindantur
et
caput
scindatur
et
Corpus
ejus
dividatur
in
quatuor
partes
et
mittentur
ad
voluntatem
Domini
Regis
.
Earl
of
Essex's
Case
,
Moore's
Rep.
and
Owen's
Case
in
1
Roll's
Rep.
have
not
this
inserted
.
And
Stamford
,
who
was
a
Judge
in
1
et
2
Phil.
et
Mar.
says
.
c.
19.
p.
128.
only
en
son
view
:
And
Alexander
Burnett
,
who
was
convicted
of
Treason
for
taking
Romish
Orders
at
the
Old
Baily
,
26
Car.
2.
Rot.
56.
had
no
such
Judgment
;
Corker's
Case
for
the
like
Offence
,
31
Car.
2.
Rot.
239.
William
Marshall
31
Car.
2.
Rot.
240.
And
Mr.
John
Hampden
had
the
like
Judgment
as
Burnett
,
&c.
1
Jac.
2.
upon
confessing
an
Indictment
of
the
same
kind
with
Walcott's
.
Whereupon
,
considering
that
many
Presidents
were
without
this
,
and
that
the
Essential
Parts
of
the
Punishment
were
in
this
Judgment
,
't
was
prayed
that
the
Judgment
of
Reversal
might
be
Reversed
,
and
the
Attainder
confirmed
.
On
the
other
side
it
was
argued
,
That
the
Original
Judgment
was
Erroneous
,
and
the
Reversal
just
.
And
first
it
was
observed
,
That
this
Writ
of
Error
was
new
and
particular
,
ex
gravi
querela
of
the
Countess
of
Roscommon
,
who
had
nothing
to
do
with
the
Record
,
was
a
meer
stranger
to
it
,
and
yet
't
is
suggested
that
the
Reversal
was
to
her
Damage
.
Then
't
was
urged
that
there
was
an
Error
in
the
first
Judgment
,
for
that
the
Judgment
,
in
Case
of
Treason
,
is
by
the
Common
Law
,
and
that
it
is
and
must
be
certain
,
and
not
at
the
pleasure
of
the
Court
which
pronounces
and
gives
it
:
That
it
ought
to
be
severe
,
because
't
is
a
Punishment
for
the
greatest
Offence
which
can
be
committed
,
Crimen
lese
Majestatis
,
a
Sin
of
the
first
Magnitude
,
an
Offence
which
imports
Treachery
to
the
Prince
,
Enmity
to
the
Country
,
Defiance
to
all
Government
,
a
Design
to
overthrow
and
confound
all
Order
and
Property
,
and
even
the
Community
it self
;
and
in
its
Consequence
occasions
the
Practise
of
all
other
Crimes
whatsoever
,
as
Murders
,
Burglaries
,
Robberies
,
&c.
and
therefore
our
Constitution
hath
imposed
upon
it
a
severe
and
cruel
Judgment
,
such
as
the
English
do
allow
or
permit
in
no
other
Case
;
the
greatest
of
other
Crimes
incur
Death
only
;
but
for
Treason
the
Judgment
is
different
.
Sir
Tho.
Smith's
Treatise
de
Republica
Anglic.
198.
there
ought
in
reason
to
be
a
proportion
between
the
Offence
and
the
Punishment
;
and
as
this
is
the
greatest
,
so
the
Penalty
is
morte
multo
atrocior
;
and
in
Fleta
lib.
1.
p.
21.
't
is
cum
aggravatione
pene
corporalis
,
somewhat
more
than
Death
.
Then
this
being
a
Common
Law
Punishment
,
and
not
prescribed
by
any
Statute
,
the
knowledge
of
it
must
be
fetcht
from
our
Law-Books
,
and
from
Presidents
;
for
the
General
Practise
of
the
Realm
,
is
the
Common
Law
;
't
is
describ'd
with
an
ipso
vivente
,
in
Smith's
Republica
Anglic.
p.
28.
lat.
Edit.
pag.
245.
Stamf.
182.
en
son
view
which
is
tantamount
;
and
Stamford
wrote
2
Eliz.
In
Coke's
3
Inst.
210.
't
is
ipsoque
vivente
comburentur
,
Pulton
de
Pace
Regni
224.
and
many
other
Books
were
cited
to
the
same
effect
:
And
't
was
affirmed
that
there
was
no
Book
,
which
recited
the
Judgment
at
large
,
but
had
this
Particular
in
it
.
Several
Books
do
in
short
put
it
,
That
for
Treason
the
Party
shall
be
Drawn
and
Hanged
and
Quartered
,
but
those
are
only
Hints
of
the
Chief
Parts
,
not
Recitals
of
the
Judgment
it self
.
In
the
English
Book
of
Judgments
,
printed
1655.
pag.
292.
't
is
mentioned
particularly
as
the
Kings
Bench
have
adjudged
it
should
be
.
The
Duke
of
Buckingham's
was
so
,
13
Hen.
8.
Stow's
Chronicle
513.
shews
that
he
was
the
Person
.
Then
't
was
said
,
they
have
been
thus
in
every
Age
without
interruption
,
'till
26
Car.
2.
Humfrey
Stafford's
Case
1
H.
7.24
.
which
was
per
consensum
omnium
Justiciariorum
,
tho'
quoted
on
the
other
side
as
shortly
stated
in
the
Year-Book
;
yet
on
the
Roll
,
which
hath
been
seen
and
perused
,
't
is
with
an
ipso
vivente
:
Plowden
387.
and
Rastal's
Entries
645.
the
same
Case
,
is
thus
:
Coke's
Ent.
699.
is
so
likewise
:
John
Littleton
in
43
Eliz.
Coke's
Ent.
422
,
423
,
and
366.
is
so
.
In
the
Lord
Stafford's
Case
,
33
Car.
2.
by
the
Direction
of
this
House
,
and
with
the
Advice
of
all
the
Judges
,
was
the
Judgment
so
given
by
the
Earl
of
Nottingham
then
Lord
High
Steward
.
In
the
Lord
Preston's
Case
't
is
so
,
which
was
drawn
by
Advice
of
the
then
Attorney
and
Sollicitor
,
the
present
Keeper
and
Chief
Justice
of
the
Common
Pleas.
As
to
the
Objection
,
That
vivens
prosternatur
doth
imply
it
,
and
that
's
enough
.
It
was
answered
,
That
ipso
vivente
comburentur
implies
both
,
but
not
e
contra
;
and
all
the
Presidents
shew
the
latter
to
be
requisite
.
And
as
to
the
Case
of
David
Prince
of
Wales
mentioned
in
Fleta
,
there
's
only
a
Relation
of
what
was
the
Execution
,
not
of
what
was
the
Judgment
.
And
Coke
2
Inst.
195.
says
,
That
the
Judgment
was
in
Parliament
,
and
therefore
the
same
can
be
no
President
to
this
purpose
;
and
any
one
that
runs
over
Cotton's
Records
,
will
find
the
Judgments
in
Parliament
to
be
different
,
as
the
Nature
of
the
Case
required
.
No
Argument
can
be
drawn
from
the
Acts
of
the
Legislature
to
govern
Judiciary
Proceedings
;
however
,
John
Hall's
Case
1
Hen.
4.
Cott.
401.
is
as
now
contended
for
.
Before
the
1
Hen.
7.
there
were
some
Erroneous
Attainders
;
and
the
29
Eliz.
takes
notice
of
them
as
so
errneous
.
The
Judgments
against
Benson
and
Sir
Andrew
Helsey
(
cited
below
)
are
plainly
erroneous
;
they
dispose
of
the
Quarters
,
which
they
ought
not
,
but
leave
the
same
to
the
King's
pleasure
.
Sir
Andrew's
President
is
a
monstrous
arbitrary
Command
by
Writ
to
Commissioners
of
Oyer
and
Terminer
,
ordering
them
to
Examine
him
,
and
to
give
Judgment
in
manner
as
in
the
Writ
is
directed
,
that
therefore
is
not
to
be
justified
;
and
't
was
before
25
Edw.
3.
Henry
Ropers
21
Rich.
2.
doth
dispose
of
the
Quarters
,
and
hath
other
Errors
in
it
;
and
so
have
William
Bathurst's
and
Henry
South's
,
which
were
in
3
Hen.
4.
But
from
that
time
to
26
Car.
2.
there
's
none
which
do
omit
it
.
The
four
Presidents
at
the
Old
Baily
were
against
Popish
Priests
,
and
what
private
politick
Reasons
or
Commands
might
occasion
the
omission
,
is
unknown
;
and
Hampden
was
not
Executed
,
but
his
Judgment
was
upon
a
Confession
,
and
his
Life
saved
,
the
reason
of
which
is
also
unknown
:
So
that
there
have
been
none
Executed
upon
such
Erroneous
Judgments
:
And
that
there
are
no
more
Presidents
,
with
the
Omission
,
is
a
good
Argument
,
that
those
many
which
have
this
Particular
in
them
,
are
good
and
legal
;
the
constant
Current
having
been
this
way
,
proves
the
same
to
be
the
Common
Law
.
And
this
is
the
most
severe
part
of
the
Punishment
,
to
have
his
Bowels
cut
out
while
alive
,
and
therefore
not
to
be
omitted
.
As
to
the
Earl
of
Essex's
Case
in
Moore
,
and
Owen's
Case
in
Roll's
Rep.
the
first
is
only
a
Report
of
the
Case
,
and
the
last
a
descant
upon
the
Judgment
,
but
neither
do
pretend
to
recite
the
whole
Judgment
.
Then
,
to
pretend
that
this
Judgment
cannot
be
Executed
,
is
to
arraign
the
Wisdom
and
Knowledge
of
all
the
Judges
and
Kings
Counsel
in
all
Reigns
:
And
Tradition
saith
that
Harrison
,
one
of
the
Regicides
,
did
mount
himself
,
and
give
the
Executioner
a
Box
on
the
Ear
after
his
Body
was
opened
,
&c.
Then
't
was
argued
,
That
if
it
be
a
necessary
part
of
the
Judgment
,
and
be
omitted
,
it
is
a
fatal
Error
,
and
doth
undoubtedly
in
all
Cases
give
a
good
reason
for
the
Reversal
of
such
Judgment
,
as
in
the
Common
Case
of
Debt
,
where
dampna
are
omitted
in
the
Judgment
,
tho'
for
the
Advantage
of
the
Defendant
,
as
is
Beecher's
Case
,
and
Yelv.
107.
Besides
,
if
this
be
legal
,
then
all
those
Attainders
,
in
which
this
Particular
is
inserted
,
must
be
illegal
;
for
't
is
impossible
that
both
the
Judgments
should
be
right
;
for
either
those
are
more
severe
than
they
should
be
,
or
this
is
more
remiss
.
To
say
,
that
't
is
discretionary
,
is
to
give
the
Judges
a
power
,
which
they
themselves
have
disclaimed
;
and
to
Reverse
this
Reversal
,
is
to
tell
the
Court
of
Kings
Bench
,
that
they
are
not
obliged
to
follow
the
General
Practise
of
their
Predecessors
;
that
they
are
obliged
to
no
form
in
their
Judgment
for
Treason
;
that
nothing
but
Death
,
and
being
Drawn
to
it
,
are
essential
;
and
according
to
that
Doctrine
,
a
Woman
might
receive
the
Judgment
of
Quartering
,
and
a
Man
might
be
Burnt
,
and
both
according
to
Law
.
But
the
Constitution
of
this
Kingdom
hath
prescribed
and
fixed
Rules
and
Forms
,
which
the
Executive
Power
is
obliged
and
bound
to
follow
;
that
as
nothing
can
be
made
or
construed
to
be
an
Offence
at
the
Pleasure
of
the
Court
,
so
no
Judgment
can
be
given
for
any
known
Offence
at
Pleasure
.
But
the
Law
,
either
Statute
or
Common
,
hath
established
what
is
an
Offence
,
and
what
is
its
Punishment
;
and
there
is
nothing
of
Arbitrary
Power
allowed
in
respect
of
either
.
Wherefore
upon
the
whole
it
was
prayed
,
that
the
Reversal
might
be
affirmed
,
and
it
was
affirmed
accordingly
.
Sir
Evan
Lloyd
Baronet
,
and
Dame
Mary
his
Wife
,
and
Sidney
Godolphin
Esq
;
and
Susan
his
Wife
,
Appellants
,
Versus
Sir
Richard
Carew
Baronet
an
Infant
,
the
Son
and
Heir
of
Sir
John
Carew
Baronet
deceased
,
Respondent
.
APpeal
from
a
Decree
of
Dismission
in
Chancery
.
The
Case
was
thus
:
Rice
Tannott
died
seized
in
Fee
of
several
Lands
in
the
several
Counties
of
Salop
,
Denbigh
,
and
Montgomery
,
leaving
three
Daughters
and
Coheirs
,
Mary
,
Penelope
,
and
Susan
.
Susan
married
Sidney
Godolphin
,
one
of
the
present
Appellants
.
In
July
1674.
Mary
and
Penelope
,
in
consideration
of
4000
l.
paid
to
the
said
Mary
by
Richard
Carew
Esq
;
and
in
consideration
of
a
Marriage
to
be
had
,
and
which
was
afterwards
had
,
between
Penelope
and
the
said
Richard
Carew
,
by
Lease
and
Release
,
convey
all
those
their
two
Parts
of
the
said
Lands
in
Denbigh
,
Salop
,
and
Montgomery
,
to
Trustees
and
their
Heirs
,
to
the
use
of
Richard
Carew
for
Life
,
then
to
Penelope
for
Life
for
her
Jointure
,
then
to
the
said
Trustees
and
their
Heirs
,
during
the
Lives
of
Richard
and
Penelope
,
to
preserve
contingent
Remainders
;
then
to
the
first
and
other
Sons
of
Richard
and
Penelope
in
Tail-Male
successively
:
And
in
default
of
Issue-Male
,
to
the
Daughters
of
Richard
and
Penelope
in
Tail
:
And
in
default
of
such
Issue
,
as
to
one
Moiety
of
the
said
two
Parts
to
the
first
and
other
Sons
of
the
said
Penelope
by
any
other
Husband
in
Tail
,
the
Remainder
of
all
and
singular
the
Premisses
to
the
said
Richard
Carew
and
his
Heirs
for
ever
,
subject
to
this
Proviso
,
That
if
it
should
happen
that
no
Issue
of
the
said
Richard
,
upon
the
Body
of
the
said
Penelope
,
should
be
living
at
the
decease
of
the
Survivor
of
them
,
and
the
Heirs
of
the
said
Penelope
should
within
Twelve
Months
after
the
decease
of
the
Survivor
of
the
said
Richard
and
Penelope
dying
without
Issue
as
aforesaid
,
pay
to
the
Heirs
or
Assigns
of
the
said
Richard
Carew
the
Sum
of
4000
l.
that
then
the
Remainder
in
Fee-simple
so
limited
,
to
the
said
Richard
Carew
and
his
Heirs
should
cease
;
and
that
then
,
and
from
thenceforth
,
the
Premisses
should
remain
to
the
use
of
the
right
Heirs
of
the
said
Penelope
for
ever
.
After
this
Mary
intermarried
with
the
Appellant
Sir
Evan
Lloyd
,
and
a
Partition
was
made
of
the
Premisses
,
and
the
same
had
been
enjoyed
accordingly
ever
since
,
and
Mr.
Carew
and
his
Lady
levied
a
Fine
to
Mr.
Godolphin
and
his
Lady
of
his
part
;
who
did
thereupon
by
their
Deed
dated
23
Sept.
1676.
covenant
to
levy
a
Fine
of
Mr.
Carew's
two
Parts
,
to
such
uses
as
he
and
his
Lady
should
limit
and
appoint
,
but
have
not
yet
levied
the
said
Fine
.
Richard
Carew
and
Penelope
his
Wife
,
to
avoid
all
Controversies
that
might
happen
,
whereby
the
Estate
of
the
said
Richard
Carew
,
or
his
Heirs
,
might
be
question'd
or
incumbred
by
the
Heirs
of
Penelope
;
and
to
the
End
to
extinguish
and
destroy
and
barr
all
such
Estate
,
Right
,
Title
,
Equitable
or
other
Interest
,
as
the
said
Penelope
then
had
,
or
her
Issue
and
Heirs
might
have
or
claim
to
the
same
,
by
any
Power
,
Settlement
,
or
Condition
,
on
payment
of
4000
l.
or
otherwise
,
to
the
Heirs
of
Richard
Carew
,
by
the
Heirs
of
the
said
Penelope
;
and
for
the
settling
of
the
same
on
the
said
Richard
Carew
and
his
Heirs
,
did
in
Michaelmas
Term
1681.
levy
a
Fine
of
the
Share
and
Part
allotted
to
them
,
and
by
Deed
of
10
Decemb.
1681.
declare
that
the
said
Fine
should
be
to
the
use
of
the
said
Richard
for
Life
,
Remainder
to
Penelope
for
Life
,
the
Remainder
to
the
said
Richard
Carew
his
Heirs
and
Assigns
for
ever
:
And
do
further
declare
,
That
the
Fine
agreed
to
be
levied
by
the
Appellants
Sidney
Godolphin
and
Susan
his
Wife
,
by
their
Deed
dated
the
23
Sept.
1676.
should
be
to
the
same
uses
,
and
then
direct
the
Trustees
by
the
first
Settlement
to
convey
to
those
uses
.
Penelope
died
without
Issue
in
1690.
Richard
Carew
made
his
Will
in
Aug.
1691.
and
devised
the
said
Lands
to
Sir
John
Carew
Baronet
,
his
Brother
,
subject
to
pay
all
his
Debts
and
Legacies
,
and
made
Sir
John
Carew
his
Executor
.
In
Decemb.
1691.
Richard
Carew
died
without
Issue
,
and
Sir
John
Carew
entred
,
and
was
seized
and
possessed
of
the
Premisses
,
and
paid
4855
l.
for
the
Debts
of
Richard
Carew
.
Sir
John
Carew
died
,
and
the
Respondent
,
Sir
Richard
Carew
an
Infant
,
is
his
Son
,
Heir
,
and
Executor
.
The
Appellants
,
Mary
and
Susan
,
claiming
the
Lands
as
Heirs
to
Penelope
,
by
virtue
of
the
said
Proviso
in
the
first
Settlement
,
upon
payment
of
the
4000
l.
exhibited
their
Bill
in
Chancery
to
compel
the
Trustees
to
convey
the
Estate
to
them
upon
such
payment
.
Upon
hearing
of
this
Cause
on
Bill
and
Answer
,
the
Court
ordered
a
State
of
the
Case
to
be
drawn
,
which
was
as
above
;
and
afterwards
the
Court
,
assisted
by
the
Chief
Justice
of
the
Common
Pleas
,
and
Mr.
Justice
Rooksby
,
seeing
no
Cause
to
relieve
the
Plaintiffs
dismissed
their
Bill
.
And
now
it
was
argued
on
behalf
of
the
Appellants
,
That
such
Dismission
ought
to
be
set
aside
;
and
amongst
other
things
,
it
was
insisted
on
in
favour
of
the
Appeal
,
that
this
Proviso
was
not
void
;
that
it
was
within
the
reason
of
the
Contingent
Limitations
allowed
by
the
late
Lord
Chancellor
Nottingham
in
the
Case
of
the
Duke
of
Norfolk
,
and
there
were
quoted
several
Paragraphs
in
the
Argument
made
by
the
said
Lord
Chancellor
,
as
that
future
Interests
,
springing
Trusts
;
or
Trusts
Executory
,
Remainders
that
are
to
emerge
or
arise
upon
Contingency
,
are
quite
out
of
the
Rules
and
Reasons
of
Perpetuities
;
nay
,
out
of
the
Reason
,
upon
which
the
Policy
of
the
Law
is
founded
in
those
Cases
,
especially
if
they
be
not
of
remote
or
long
Consideration
,
but
such
as
by
a
natural
and
easie
Interpretation
will
speedily
wear
out
,
and
so
things
come
to
the
right
Channel
again
:
That
tho'
there
can
be
no
Remainders
limited
after
a
Fee-simple
,
yet
there
may
be
a
Contingent
Fee-simple
arise
out
of
the
first
Fee
;
that
the
ultimum
quod
sit
,
or
the
utmost
Limitation
of
a
Fee
upon
a
Fee
is
not
yet
plainly
determined
;
that
tho'
it
be
impossible
to
limit
a
Remainder
of
a
Fee
upon
a
Fee
,
yet
't
is
not
impossible
to
limit
a
Contingent
Fee
upon
a
Fee
;
that
no
Conveyance
is
ever
to
be
set
aside
in
Chancery
,
where
it
can
be
supported
by
a
reasonable
Construction
,
especially
where
't
is
a
Family
Settlement
.
Then
these
Paragraphs
were
applied
;
and
further
urged
,
That
there
could
not
in
reason
be
any
difference
between
a
Contingency
to
happen
during
Life
or
Lives
,
or
within
one
year
afterwards
;
that
the
true
reason
of
such
Opinions
which
allowed
them
,
if
happening
within
the
time
of
the
Parties
lives
,
or
upon
their
deceases
,
was
because
no
Inconvenience
could
be
apprehended
thereby
;
and
the
same
Reason
will
hold
to
one
year
afterwards
;
and
the
true
Rule
is
to
fix
Limits
and
Boundaries
to
such
Limitations
,
when
so
made
,
as
that
they
prove
Inconvenient
,
and
not
otherwise
:
That
this
Limitation
upon
this
Contingency
happening
,
was
the
considerate
Intention
of
the
Family
,
the
Circumstances
whereof
required
Consideration
,
and
this
Settlement
was
the
Result
of
it
,
and
made
by
good
Advice
:
That
the
Fine
could
not
barr
the
Benefit
of
this
Proviso
;
for
that
the
same
never
was
,
nor
ever
could
be
in
Penelope
,
who
levied
the
Fine
.
As
to
the
Pretence
,
That
if
the
Appellants
were
relieved
,
Richard
Carew
who
married
Penelope
,
would
have
no
Portion
with
her
.
'T
was
answered
,
That
that
could
not
alter
the
Case
;
the
Agreement
and
Intention
of
the
Parties
being
the
most
considerable
Matter
;
and
besides
,
Richard
enjoyed
the
Estate
during
his
Life
without
impeachment
of
Waste
.
And
as
to
the
Debts
,
't
was
answered
,
That
those
were
no
Ingredients
in
the
Question
;
however
there
would
be
4000
l.
paid
towards
it
,
and
the
Personal
Estate
was
more
than
enough
to
pay
the
residue
.
For
which
,
and
other
Reasons
,
't
was
prayed
that
the
Dismission
might
be
Reversed
.
On
the
other
side
it
was
insisted
on
with
the
Decree
,
1.
That
the
Limitation
by
the
Settlement
in
July
1674.
to
the
Heirs
of
Penelope
,
upon
payment
of
4000
l.
by
them
to
the
Heirs
of
Richard
Carew
,
within
Twelve
Months
after
the
death
of
Richard
and
Penelope
,
without
Issue
,
at
the
time
of
the
decease
of
the
Survivor
of
them
,
is
a
void
Limitation
,
the
Fee-simple
being
before
limited
to
Richard
and
his
Heirs
,
and
so
not
capable
of
a
further
Limitation
,
unless
upon
a
Contingency
to
happen
in
the
Life
of
one
or
more
Persons
in
being
,
at
the
time
of
the
Settlement
;
which
is
the
furthest
that
the
Judges
have
ever
yet
gone
,
in
allowing
these
Contingent
Limitations
upon
a
Fee
;
and
which
were
the
Bounds
set
to
these
Limitations
by
the
late
Lord
Chancellor
Nottingham
,
in
the
Case
of
the
Duke
of
Norfolk
;
that
tho'
there
were
such
Expressions
as
had
been
read
on
the
other
side
,
yet
the
Bounds
set
by
him
to
these
Limitations
,
were
only
dependent
upon
Life
or
Lives
in
being
,
and
never
as
yet
went
any
further
:
And
if
they
should
be
Extended
,
and
allowed
to
be
good
upon
Contingencies
to
happen
within
Twelve
Months
after
the
Death
of
one
or
more
Persons
,
they
may
be
as
well
allowed
upon
Contingencies
to
happen
within
a
Thousand
years
;
by
which
all
the
Mischiefs
,
that
are
the
necessary
Consequents
of
Perpetuities
,
which
have
been
so
industriously
avoided
in
all
Ages
,
will
be
let
in
;
and
the
Owner
of
a
Fee-simple
thus
clogged
,
would
be
no
more
capable
of
providing
for
the
Necessities
and
Accidents
of
his
Family
,
then
a
bare
Tenant
for
Life
.
2.
If
this
Limitation
were
good
,
't
was
urged
,
That
the
Estate
limited
to
the
Heirs
of
Penelope
was
virtually
in
her
,
and
her
Heirs
must
claim
by
Descent
from
her
,
and
not
as
Purchasors
;
and
by
Consequence
this
Estate
is
effectually
barred
by
the
Fine
of
Penelope
:
the
design
of
limiting
this
Power
to
the
Heirs
,
not
being
to
exclude
the
Ancestor
;
but
because
the
Power
could
not
in
its
nature
be
executed
until
after
the
decease
of
the
Ancestor
,
it
being
to
take
effect
upon
a
Contingency
,
that
could
not
happen
till
after
that
time
;
and
this
Bill
and
Appeal
was
not
only
to
have
the
said
Richard
Carew
,
who
married
Penelope
,
to
have
not
one
Farthing
Portion
with
his
Wife
,
but
to
make
the
now
Respondent
Sir
Richard
Carew
,
to
lose
the
4855
l.
which
his
Father
Sir
John
Carew
paid
,
as
charged
on
the
Lands
in
question
.
For
which
Reasons
,
and
many
others
well
urged
about
the
Mischief
and
Danger
of
Perpetuities
,
and
their
Increase
of
late
years
,
to
the
intangling
and
ruine
of
many
Families
,
it
was
prayed
that
the
Decree
of
Dismission
might
be
affirmed
,
but
the
same
was
Reversed
.
Sir
William
Morley
Knight
of
the
Bath
,
Plaintiff
,
Versus
Peter
Jones
Defendant
.
WRit
of
Error
to
Reverse
a
Judgment
in
B.R.
in
Ejectment
upon
the
Demise
of
Bellingham
,
upon
a
Special
Verdict
,
which
finds
,
That
Anne
Bowyer
Spinster
,
was
seized
in
Fee
of
the
Mannor
of
Frencham
;
that
the
said
Anne
and
Edward
Morley
Esq
;
and
Sir
William
and
J.
Wells
ante
tempus
quo
,
&c.
viz.
22
July
1664.
did
make
,
and
as
their
Deed
,
deliver
a
certain
Indenture
with
their
Seals
sealed
,
whereby
the
said
Anne
demises
the
Mannor
aforesaid
to
Sir
William
and
Wells
,
and
their
Executors
,
for
one
Month
from
the
Day
next
before
the
Day
of
the
Date
;
that
Sir
W.
and
Wells
entred
and
were
possessed
;
that
they
the
23d
of
July
in
the
said
Year
sealed
,
and
as
their
Deed
,
delivered
another
Indenture
with
their
Seals
sealed
,
whereby
the
said
Anne
,
reciting
a
Marriage
intended
between
Anne
and
Edward
;
and
that
Edward
had
agreed
to
settle
a
Jointure
out
of
his
Lands
to
the
value
of
300
l.
per
Annum
;
and
that
the
said
Anne
had
agreed
,
in
case
the
Marriage
took
effect
,
and
a
Jointure
were
made
,
as
aforesaid
,
to
settle
the
said
Mannor
on
him
and
his
Heirs
,
and
to
particular
Trusts
after-mentioned
,
until
the
same
be
performed
.
She
the
said
Anne
,
in
consideration
of
the
Marriage
,
and
in
performance
of
the
Agreement
on
her
part
,
Bargains
,
Releases
,
and
Confirms
to
Sir
W.
and
Wells
their
Heirs
,
the
said
Mannor
,
and
all
her
Right
,
&c.
and
the
Reversion
,
&c.
in
Trust
for
the
said
Anne
and
her
Heirs
,
until
the
Marriage
take
effect
,
and
assurance
of
a
Jointure
be
made
as
aforesaid
;
and
after
such
Marriage
and
Assurance
of
such
value
as
aforesaid
,
then
to
the
use
of
Edward
and
his
Heirs
,
&c.
Then
the
1st
of
August
1664.
a
Marriage
was
had
;
then
the
29th
of
Jan.
1665.
a
Deed
is
Executed
between
the
said
Edward
and
Anne
of
the
first
part
,
and
Young
and
Truster
as
Trustees
on
the
other
part
,
reciting
that
a
Fine
is
already
acknowledged
,
and
agreed
to
be
levied
in
due
Form
of
Law
next
Hillary
Term
,
between
the
said
Young
and
Truster
Plaintiffs
,
and
the
said
Edward
and
Anne
his
Wife
,
of
the
said
Mannor
of
Frencham
,
and
thereby
declared
that
the
said
Fine
should
be
to
the
use
of
Edward
and
his
Heirs
.
Two
days
after
the
Execution
of
that
Deed
,
and
before
the
Fine
levied
,
viz.
31
Jan.
1665.
another
Writing
indented
was
made
and
executed
under
Seal
,
between
the
said
Edward
of
the
one
part
,
and
the
said
Anne
of
the
other
part
,
whereby
they
both
,
in
Consideration
of
the
said
Marriage
,
and
other
good
Causes
,
did
Covenant
,
Consent
,
and
Agree
to
revoke
all
former
Grants
,
Bargains
,
Contracts
,
Writings
,
Covenants
,
and
Obligations
made
or
done
between
them
,
or
any
other
for
them
,
until
the
said
Edward
had
performed
the
Agreements
in
the
said
Marriage
Settlement
on
his
part
,
both
in
Law
and
Equity
;
and
that
in
default
thereof
,
it
might
be
lawful
for
the
said
Anne
and
her
Heirs
,
to
enter
into
the
said
Mannor
and
Land
,
conveyed
by
the
said
Settlement
,
without
the
lett
of
the
said
Edward
and
his
Heirs
.
Afterwards
the
Fine
was
levied
,
Octabis
Purificationis
,
which
was
the
9th
of
February
in
that
Term
:
And
afterwards
by
Indenture
between
the
said
Edward
Morley
of
the
one
part
,
and
one
Henry
Doble
of
the
other
part
,
dated
9
July
1666.
the
said
Edward
in
consideration
of
600
l.
Mortgages
the
said
Mannor
to
Doble
and
his
Heirs
:
Then
the
Money
not
being
paid
by
Edward
Morley
to
Doble
,
Doble
did
2
June
1676.
in
consideration
of
600
l.
with
Interest
,
paid
by
Sir
William
Morley
,
conveys
the
said
Mannor
to
one
Thomas
Young
;
that
Edward
Morley
did
never
convey
the
Lands
agreed
to
be
conveyed
for
a
Joynture
to
the
value
of
300
l.
per
Annum
,
but
did
settle
and
convey
only
part
,
which
was
of
the
value
of
250
l.
per
Annum
,
and
no
more
,
and
that
subject
and
liable
to
the
payment
of
15
l.
yearly
for
ever
to
a
Stranger
.
The
said
Anne
dies
without
Issue
,
and
Henry
Bellingham
was
Cosin
and
next
Heir
,
Et
si
,
&c.
And
Judgment
was
given
in
B.
R.
pro
quer
'
.
It
was
argued
on
the
behalf
of
Sir
William
Morley
,
That
this
Judgment
was
Erroneous
;
that
the
first
Deed
,
and
the
Matter
of
the
Joynture
was
nothing
in
the
Case
;
that
the
Question
was
,
to
what
uses
the
Fine
was
levied
;
that
the
Deed
executed
under
Seal
between
Edward
and
Anne
,
and
the
Trustees
,
did
effectually
declare
the
uses
of
this
Fine
,
and
that
the
second
Instrument
cannot
be
made
use
of
,
as
a
Deed
,
to
controul
the
former
;
that
the
first
was
fairly
made
,
and
all
Parties
requisite
concurring
to
it
.
And
that
of
the
31
Jan.
was
not
a
Deed
;
for
a
Man
cannot
make
a
Deed
to
his
Wife
,
or
to
himself
;
this
cannot
be
construed
a
Deed-Poll
,
when
't
is
Indented
;
for
that
is
to
construe
a
thing
different
from
what
it
is
:
Intent
may
be
construed
,
but
one
Thing
or
sort
of
Instrument
can
never
be
taken
for
another
.
Then
supposing
it
a
Deed-Poll
,
it
doth
not
revoke
,
it
takes
no
notice
of
the
Fine
or
the
Deed
;
it
hath
no
reference
to
either
of
them
;
it
says
that
all
Agreements
are
to
be
void
;
but
how
?
't
is
not
absolutely
;
only
till
a
particular
Thing
be
done
:
So
that
't
is
not
a
Revocation
,
so
as
to
annul
the
Deed
of
the
29th
:
and
the
Husband
by
this
neither
did
,
nor
could
direct
the
use
of
the
Fine
to
be
to
the
Wife
.
Suppose
that
before
the
Statute
of
Uses
,
a
Man
had
declared
an
Use
to
his
Wife
,
it
was
no
Trust
or
Use
,
for
that
no
Subpena
lay
at
the
Instance
of
the
Wife
against
the
Husband
.
A
Man
could
not
be
a
Trustee
for
his
Wife
.
Now
no
Use
can
be
Executed
by
the
Statute
,
but
where
a
Subpena
did
lye
before
the
Statute
to
compel
the
Injoyment
according
to
it
:
And
therefore
't
is
,
that
a
Corporation
could
not
be
seized
to
an
Use
,
because
no
Subpena
;
and
no
Subpena
,
because
no
Attachment
lay
against
a
Body
Corporate
.
Suppose
the
last
Deed
to
be
any
thing
,
't
is
only
a
Parol
Evidence
,
and
that
will
not
Revoke
the
first
Deed.
Then
here
's
no
Variance
between
the
Fine
and
the
Deed
of
the
29th
:
The
Deed
says
a
Fine
is
already
acknowledg'd
,
and
to
be
levied
the
next
Hillary
Term
,
between
the
same
Parties
,
and
of
the
same
Lands
:
This
is
either
the
next
Hillary
Term
after
the
Conusance
of
the
Fine
,
or
after
the
Deed
:
Then
't
is
not
usual
to
acknowledge
a
Fine
,
and
levy
it
an
Year
after
;
't
is
not
allowable
in
Practise
,
and
therefore
't
is
not
to
be
so
Expounded
;
for
Men
are
to
be
intended
to
act
reasonably
,
and
according
to
Common
Usage
.
Now
't
is
true
,
it
doth
not
appear
when
the
Caption
was
,
whether
in
or
before
the
Term
;
yet
common
Intendment
must
carry
it
,
that
the
Caption
was
before
the
Term
,
and
so
't
was
to
be
a
Fine
of
that
Term
,
or
to
be
in
or
before
the
next
Hillary
;
the
Parties
designed
not
,
the
Fine
should
lye
for
one
whole
Year
:
If
it
had
been
in
or
before
,
it
had
been
well
enough
;
then
,
tho'
those
words
are
not
in
,
it
is
plain
that
the
Intent
was
so
:
The
Earl
of
Rutland's
Case
,
was
upon
Evidence
,
and
not
upon
Pleading
.
If
levied
before
the
time
,
that
is
well
;
the
next
Hillary
Term
,
is
no
more
,
then
on
or
before
;
or
in
Hillary
next
at
the
furthest
,
or
by
Hillary
Term
next
:
These
all
do
sound
much
to
the
same
purpose
in
common
Understanding
.
The
End
of
a
good
Construction
is
to
supply
the
Defects
of
Expression
;
Then
taking
it
for
the
next
Hillary
Term
after
that
Term.
If
I
do
a
thing
before
the
time
,
't
is
done
in
pursuance
of
the
Intent
;
for
the
Day
given
is
for
the
Advantage
of
the
Party
who
hath
Liberty
given
to
forbear
the
Act
during
all
that
space
,
till
the
last
Day
of
the
time
given
;
but
if
he
doth
it
sooner
,
the
End
is
fulfilled
;
so
Payment
before
is
always
reckoned
as
Payment
at
the
Day
:
And
't
is
so
in
all
Cases
,
where
the
Time
is
not
in
the
most
considerable
part
of
the
Agreement
,
as
in
Harvest
,
in
Winter
,
or
the
like
;
and
the
Nature
of
the
Act
is
such
,
that
't
is
most
convenient
for
the
Obligee
or
Covenantee
to
have
it
at
that
Season
,
and
not
before
:
In
the
Earl
of
Rutland's
Case
,
't
is
agreed
if
within
the
time
,
't
is
good
.
Will
any
Man
say
that
this
is
not
the
Fine
which
was
meant
?
If
a
Covenant
be
to
make
a
Feoffment
in
Trinity
Term
next
,
such
a
Feoffment
before
fulfils
the
Covenant
:
This
is
not
a
Fine
acknowledg'd
by
any
other
Parties
,
of
any
other
Lands
,
or
upon
any
other
Agreement
.
Suppose
a
Man
had
a
power
of
Revocation
by
Deed
under
Seal
with
Witnesses
,
and
had
covenanted
in
such
manner
to
levy
a
Fine
before
this
Day
Twelve-month
,
and
before
the
Day
he
had
levied
a
Fine
;
now
the
Deed
was
no
Revocation
,
because
not
Express
,
and
of
it self
made
no
Alteration
in
the
Estate
;
and
the
Fine
of
it self
was
not
,
because
not
by
Deed
attested
;
but
both
together
make
a
Revocation
;
they
are
but
one
Conveyance
,
as
was
adjudged
in
the
two
Cases
of
Wigson
and
Garret
,
and
Herring
and
Brown
;
Should
not
this
have
been
a
Revocation
?
Either
this
first
was
designed
to
deceive
the
Wife
,
or
the
second
was
designed
to
deceive
Creditors
and
Mortgagees
;
the
Creditor
is
to
be
preferred
.
Suppose
the
first
were
made
,
as
't
is
most
likely
to
enable
him
to
borrow
Money
.
't
would
be
hard
to
construe
the
second
good
:
Would
any
Purchasor
have
doubted
this
Title
,
if
he
had
seen
the
Fine
and
this
Deed
of
the
29th
?
To
allow
this
second
,
is
to
Countenance
a
Practise
which
may
deceive
any
Man
;
for
a
Deed
precedent
leading
the
Uses
of
a
Fine
,
is
binding
,
and
concludes
against
any
Thing
but
an
intermediate
Deed
between
that
and
the
Fine
;
and
such
private
Agreement
between
Husband
and
Wife
,
may
be
had
and
pretended
in
any
Case
whatsoever
.
Then
was
cited
Havergill
and
Hare
,
2
Rolls
799.
And
't
was
further
said
,
that
against
a
Mortgagee
the
second
will
be
void
,
according
to
Proger's
Case
,
1
Sid.
133.
A
Conveyance
voluntary
,
that
was
good
in
its
first
Creation
,
may
become
void
by
subsequent
Accidents
;
and
in
truth
it
was
admitted
below
,
that
this
second
Writing
was
no
Deed
,
had
no
more
efficacy
than
a
Parol
Averment
;
and
consequently
the
only
Query
can
be
,
If
this
Fine
be
another
,
and
different
,
from
that
which
was
meant
and
intended
by
the
Deed
of
the
29th
:
for
if
it
be
not
,
then
Parol
Averments
or
Agreements
ought
not
to
be
admitted
.
Besides
,
this
is
but
Evidence
,
nor
proper
for
the
Court
to
consider
,
and
the
Jury
should
have
concluded
specially
,
That
if
Parol
Evidence
,
or
a
naked
Averment
should
be
admitted
,
then
they
find
to
such
Uses
:
But
here
't
is
like
finding
the
Badges
of
Fraud
,
without
finding
the
Fraud
it self
,
or
a
Demand
and
Denial
,
without
finding
a
Conversion
;
upon
neither
of
which
can
the
Court
judge
the
Thing
to
be
a
Fraud
or
a
Conversion
.
And
for
these
and
other
like
Reasons
it
was
prayed
,
that
the
Judgment
might
be
reversed
.
It
was
argued
on
the
other
side
with
the
Judgment
,
That
this
Fine
thus
levied
was
not
to
the
use
of
the
Husband
,
but
of
the
Wife
and
her
Heirs
;
that
the
Fine
is
not
to
the
Uses
in
the
Deed
of
the
29th
,
but
controuled
by
that
of
the
31st
.
'T
was
agreed
,
that
if
there
be
a
Deed
to
levy
a
Fine
,
and
in
pursuance
thereof
a
Fine
is
levied
,
to
the
Person
,
of
the
Lands
,
and
at
the
time
,
no
Proof
shall
be
allowed
,
that
the
Fine
was
to
any
other
Use
,
but
if
it
be
in
case
of
a
subsequent
Deed
,
then
Averment
may
be
against
it
;
but
by
the
making
of
a
precedent
Deed
,
all
Parties
are
estopped
to
contradict
it
,
unless
there
be
another
Deed
of
equal
Nature
to
controul
that
.
Where
the
Deed
is
punctually
observed
,
there
's
no
liberty
to
aver
the
contrary
;
but
where
't
is
not
pursued
,
the
Averment
is
consistent
.
Where
it
doth
vary
,
yet
if
nothing
doth
appear
to
the
contrary
,
there
the
fine
shall
be
construed
to
be
to
the
Uses
of
the
Deed
by
construction
of
Law
;
a
Wife
is
bound
by
the
Husband's
Declaration
;
and
if
the
Fine
be
in
pursuance
of
the
Husband's
Deed
,
't
is
as
binding
to
her
,
as
if
she
were
a
Party
:
An
Infant
cannot
avoid
a
Fine
,
where
there
was
a
Deed
agreeable
,
but
by
reversing
it
.
Then
't
was
argued
,
That
here
was
such
a
Variance
as
did
allow
of
such
Averment
;
that
't
is
true
,
the
Deed
of
29.
had
been
a
good
Declaration
of
the
Uses
of
this
Fine
,
notwithstanding
the
Variance
,
if
the
Writing
of
31.
had
not
been
made
;
but
there
being
a
Variance
,
that
is
admissible
;
that
this
Fine
now
found
differs
as
much
from
that
in
the
Deed
,
as
if
it
had
been
levied
at
a
time
after
;
that
levying
it
before
,
makes
it
not
the
same
.
The
Woman
perhaps
here
did
agree
to
levy
a
Fine
at
this
distance
of
time
,
that
she
might
in
the
mean
while
have
a
competent
Provision
out
of
her
Husband's
Estate
for
her
Joynture
,
then
when
she
levies
this
Fine
at
a
different
time
,
she
doth
not
do
it
in
pursuance
of
the
first
Deed.
Then
1
Rep.
76
,
99.
3
Bulstr.
231.
2
Rolls
Abridg.
251.
2
Cro.
646.
2
Rolls
Abridg.
799.
Savil
124.
1
Leon.
210.
3
Cro.
210.
1
And.
240.
were
quoted
,
and
either
answered
or
applied
to
this
Point
of
Variance
.
Then
't
was
said
,
That
there
was
a
difference
between
a
Fine
that
varies
from
a
precedent
Deed
,
and
a
Fine
that
is
followed
with
a
subsequent
Deed
or
Declaration
of
Uses
.
If
there
be
a
subsequent
Declaration
,
the
Heir
at
Law
cannot
aver
that
't
was
to
the
use
of
the
Conusor
and
his
Heirs
,
or
to
any
other
use
then
what
is
in
the
Deed
;
the
Party
himself
,
or
his
Heirs
cannot
aver
it
,
but
they
are
estopped
by
this
Deed
,
tho'
subsequent
;
however
,
a
Stranger
is
at
liberty
to
make
such
Averment
:
But
if
a
Deed
be
precedent
,
and
the
Fine
varies
,
and
is
not
the
same
,
there
none
are
estopped
,
neither
the
Party
himself
,
his
Heir
,
nor
a
Stranger
;
because
the
Fine
stands
alone
,
without
any
Deed
referring
to
it
,
and
declaring
the
uses
of
it
.
‛
Then
't
was
urged
,
That
this
second
Deed
was
sufficient
to
declare
the
uses
of
this
Fine
:
If
the
use
arise
upon
,
or
by
transmutation
of
the
Possession
,
as
by
Fine
or
Feoffment
,
't
is
sufficient
without
any
Deed
;
the
use
arises
only
upon
the
Parties
Declaration
or
Appointment
:
If
without
a
transmutation
of
Possession
,
there
must
be
some
Agreement
binding
the
Party
upon
some
Consideration
;
for
the
use
being
founded
in
Equity
,
the
Chancery
would
never
relieve
,
where
there
was
no
transmutation
of
Possession
or
Agreement
upon
Consideration
;
and
if
in
Consideration
of
Blood
,
it
must
be
by
Deed
,
because
the
Consideration
is
not
binding
without
it
,
Moore's's
Rep.
Callow
and
Callow
.
If
this
Writing
of
31.
had
expresly
declared
,
that
it
should
enure
to
the
Husband
and
his
Heirs
upon
such
a
Contingency
,
this
had
been
a
good
original
Declaration
of
the
use
,
and
would
have
altered
the
Estate
,
because
of
the
transmutation
of
the
Possession
;
and
as
't
is
now
penned
,
't
is
a
good
Writing
,
sufficient
to
declare
the
uses
of
the
Fine
;
any
sort
of
Agreement
,
whereby
the
Parties
intent
appears
,
is
sufficient
;
an
use
is
an
equitable
thing
;
and
if
it
appears
to
have
been
intended
,
that
is
enough
,
2
Leon.
14.
Brent's
Case
:
any
Agreement
between
the
Party
that
hath
the
Estate
,
and
him
who
is
to
have
it
,
may
raise
an
use
in
this
Case
:
a
Bargain
and
Sale
of
the
Lands
carries
the
use
,
tho'
no
mention
of
it
:
8
Rep.
Fox's
Case
,
Crossing
and
Scudamore
;
In
this
Case
there
was
an
Agreement
betwixt
Husband
and
Wife
,
that
he
should
have
the
Lands
,
if
he
made
a
Jointure
.
A
Bargain
and
Sale
,
tho'
not
inrolled
,
a
Charter
of
Feoffment
without
Livery
,
shall
raise
the
use
of
a
Fine
levied
between
the
same
Parties
;
therefore
this
Writing
is
a
good
Appointment
.
But
suppose
it
were
not
so
of
it self
,
't
is
sufficient
to
controul
that
of
the
29th
;
for
't
is
agreed
thereby
,
that
all
Deeds
shall
be
revoked
;
which
shews
plainly
,
that
the
Fine
was
not
to
be
to
the
uses
mentioned
in
that
Deed
,
especially
when
it
varies
from
it
.
A
Parol
Declaration
of
the
Mind
of
the
Party
will
be
enough
to
controul
and
hinder
the
raising
of
an
use
by
the
Deed
,
and
Fine
where
different
;
and
if
so
,
then
the
use
here
is
to
the
Wife
and
her
Heirs
.
Then
supposing
the
Variance
frivolous
and
immaterial
,
this
Writing
of
the
Husband
and
Wife
is
a
good
appointment
;
the
Trustees
or
Conusees
of
the
Fine
need
not
to
be
Parties
to
the
appointing
or
declaring
of
the
uses
:
The
Indenture
precedent
is
but
directory
,
and
if
there
be
another
direction
under
Seal
before
the
Fine
,
it
must
over-rule
the
first
,
Writing
of
it self
seems
enough
,
2
Cro.
29.
3
Cro.
571.
But
suppose
an
Indorsment
on
the
Indenture
revoking
one
use
,
before
the
Fine
be
levied
,
would
not
that
controul
it
?
This
is
rather
like
a
last
Will
,
and
the
last
before
the
Fine
must
stand
.
A
Covenant
to
stand
seized
must
have
all
the
necessary
Parts
of
a
Deed
,
so
as
to
have
been
obligatory
in
Chancery
before
the
Statute
;
but
a
meer
Declaration
of
uses
need
not
be
so
formal
:
The
use
declared
by
the
29th
was
always
revocable
till
the
Fine
was
levied
:
and
this
is
sufficient
both
to
revoke
the
last
Declaration
,
and
to
declare
new
uses
;
this
amounts
at
least
to
a
Deed-Poll
,
and
therefore
sufficient
.
Then
were
cited
Moore
22
,
512.
Latch
.
139.
and
many
other
Authorities
:
And
upon
the
whole
't
was
prayed
,
that
the
Judgment
should
be
affirmed
;
and
it
was
affirmed
.
Sir
Edward
Hungerford
and
John
Hill
Executors
and
Devisees
of
Sir
William
Basset
deceased
,
Plaintiffs
,
versus
Edward
Nosworthy
Defendant
.
WRit
of
Error
to
Reverse
a
Judgment
in
B.
R.
upon
a
Special
Verdict
in
Ejectment
by
Hitchins
the
Lessee
of
Nosworthy
,
against
Sir
William
Basset
Defendant
,
for
the
Mannor
of
Lanrock
and
other
Lands
in
Cornwall
;
wherein
,
upon
Not
Guilty
pleaded
,
and
a
Trial
at
Bar
,
the
Jury
find
,
That
Sir
Henry
Killegrew
was
seized
in
Fee
of
the
Lands
in
question
;
and
on
the
12th
of
November
1644.
made
his
Will
in
writing
,
which
follows
in
these
words
,
I
Henry
Killegrew
,
&c.
and
so
they
set
forth
the
Will
,
whereby
Sir
Henry
Killegrew
devised
the
Premisses
to
Mrs.
Jane
Berkley
(
his
near
Kinswoman
)
for
Life
;
with
Remainder
over
to
Henry
Killegrew
,
alias
Hill
(
Sir
Henry's
Natural
Son
)
in
Tail
,
and
makes
Mrs.
Berkley
sole
Executrix
.
They
further
find
,
that
after
the
making
of
that
Testament
,
and
before
the
time
when
,
&c.
viz.
about
the
Feast
of
St.
Michael
,
in
the
Year
1645.
Condidit
&
fecit
aliud
Testamentum
in
scriptis
,
sed
quid
fuit
content'
in
eodem
ult'
mentionat'
Testamento
,
vel
quale
fuit
purportum
sive
effectus
inde
,
juratoribus
praed'
non
constat
.
And
that
Sir
Henry
on
the
29th
of
September
1646.
died
seized
of
the
said
Lands
;
that
Mrs.
Jane
Barkley
,
Devisee
of
the
said
Will
,
in
1644.
by
Lease
and
Release
conveyed
to
Mr.
Nosworthy's
Father
,
and
that
the
Father
died
in
1684.
that
Mr.
Nosworthy
is
Son
and
Heir
to
him
;
that
Sir
William
Basset
is
Cosin
and
Heir
to
Sir
Henry
,
viz.
Son
and
Heir
of
Elizabeth
Basset
,
Daughter
and
Heir
of
Sir
Joseph
Killegrew
,
elder
Brother
of
Sir
Henry
the
Testator
;
that
Nosworthy
the
Lessor
of
the
Plaintiff
,
entred
and
made
the
Lease
in
the
Declaration
,
&c.
But
upon
the
whole
Matter
,
whether
the
Said
Testament
made
in
writing
1645.
was
a
Revocation
in
Law
of
the
said
Devise
of
the
said
Lands
to
Mrs.
Berkley
,
they
are
ignorant
,
and
pray
the
Judgment
of
the
Court
,
Et
si
,
And
upon
this
Judgment
was
given
for
the
Plaintiff
in
the
Ejectment
.
And
now
it
was
argued
,
That
the
Judgment
was
Erroneous
;
that
this
last
Will
could
not
be
taken
to
be
a
duplicate
of
the
former
,
but
must
be
deemed
a
Revocation
;
that
no
Will
is
good
but
the
last
;
that
every
Will
is
revokable
till
death
;
that
the
making
of
another
,
doth
import
a
Revocation
of
all
former
ones
,
tho'
it
be
not
so
expresly
declared
in
writing
;
for
it
must
be
the
last
,
or
nothing
;
that
this
Conveyance
by
Will
was
anciently
a
Priviledge
by
the
Civil
Law
,
for
People
in
Extremis
,
who
had
not
the
time
or
assistance
necessary
to
make
a
formal
Alienation
,
and
chiefly
intended
for
Military
Men
,
who
were
always
supposed
to
be
under
those
Circumstances
,
and
therefore
the
Ceremonies
and
number
of
Witnesses
required
of
others
,
were
dispensed
with
,
as
to
Soldiers
;
but
now
the
Rules
for
Military
Testaments
,
as
they
are
called
,
are
allowed
in
most
Cases
;
that
as
to
Lands
,
by
our
Law
,
was
a
Priviledge
only
given
to
some
Boroughs
and
Places
within
the
Kingdom
;
and
particular
Custom
gave
the
liberty
of
disposing
Lands
or
Houses
by
Will
,
and
that
by
nuncupative
Will
or
Parol
without
writing
;
so
is
Bracton
.
lib.
4.
fol.
272.
Fleta
lib.
5.
cap.
5.
Potest
legari
&
catallum
tam
hereditas
quam
perquisitum
per
Barones
London
&
Burgenses
Oxon
,
1
Inst.
111.
that
then
came
the
Statute
of
Hen.
8.
and
impowers
a
Devise
by
a
Man's
last
Will
and
Testament
in
writing
;
but
still
't
is
by
his
last
Will
.
And
so
is
Littleton
sect.
168.
If
divers
Wills
,
the
latter
shall
stand
,
and
the
others
are
void
,
1
Inst.
112.
In
truth
't
is
plain
Law
,
the
first
Grant
and
the
last
Testament
.
In
Swinb
.
1
part
,
sect.
5.
p.
14.
no
Man
can
die
with
two
Wills
,
but
he
may
with
divers
Codicils
;
and
the
latter
doth
not
hinder
the
former
,
so
long
as
they
be
not
contrary
.
Another
difference
there
is
between
Wills
and
Codicils
:
If
two
Testaments
be
found
,
and
it
can't
be
known
,
which
is
first
or
last
,
both
are
void
;
but
the
latter
countermands
the
first
,
tho'
there
be
a
Clause
in
the
first
,
that
it
shall
not
be
revoked
,
and
tho'
an
Oath
were
taken
not
to
revoke
;
because
the
Law
is
so
,
that
the
very
making
of
a
latter
doth
revoke
the
former
:
So
is
Liuwood's
Provincial'
de
Testamentis
;
Justice
Dodderidge's
Office
of
Executor
,
published
by
Wentworth
29.
A
verbal
Will
revokes
a
former
written
Will
,
Forse
and
Hembling
,
4
Rep.
60
,
61.
Plowd.
541.
Perkins
sect.
178
,
179.
and
sect.
478.
The
2
Hen.
5.8
.
is
full
to
this
purpose
.
There
's
an
Action
by
an
Executor
against
two
Executors
,
and
they
plead
a
Testament
whereby
they
are
made
Executors
;
and
the
Plaintiff
replys
,
that
he
afterwards
made
another
and
himself
Executor
,
and
held
that
by
the
second
the
first
became
void
.
Now
the
meaning
of
these
Books
,
cannot
be
,
that
a
Will
expresly
revoking
,
is
the
only
Will
that
can
make
a
Revocation
;
nor
is
it
,
that
a
Contrariety
or
Repugnance
between
the
one
and
the
other
,
is
necessary
to
make
a
Revocation
;
for
tho'
there
be
no
new
Will
made
,
yet
a
Revocation
may
be
by
word
of
Mouth
,
as
2
Cro.
49.115
.
1
Cro.
51.3
Cro.
781.
nay
,
a
void
Bequest
shall
revoke
a
Will
,
so
shall
a
Deed
that
hath
no
effect
,
as
Feoffment
without
livery
,
a
Devise
to
J.S.
or
to
a
Corporation
,
when
there
is
no
such
,
will
do
it
;
so
that
't
is
not
the
Contradiction
between
the
disposal
which
revokes
,
for
that
which
is
no
disposition
at
all
will
do
it
;
wherefore
the
meaning
of
the
Authors
cited
is
somewhat
else
;
and
it
can
only
be
this
,
That
there
is
somewhat
particular
in
a
Will
,
to
that
Instrument
of
Conveyance
,
more
than
to
any
other
,
that
even
the
making
of
a
new
Will
is
a
sufficient
Revocation
;
the
words
are
plain
,
by
the
making
a
new
Will
the
former
are
all
destroyed
,
for
there
can
be
but
one
last
.
And
when
a
Man
makes
and
declares
a
new
Will
,
that
new
Will
must
be
presumed
to
contain
his
whole
Mind
concerning
the
disposition
of
his
Estate
;
declaring
his
Will
imports
thus
much
,
and
excludes
all
other
.
When
a
Man
would
alter
part
of
his
Will
,
there
's
a
proper
Instrument
for
it
,
called
a
Codicil
,
which
is
known
in
the
Law
as
well
as
that
of
a
Will
:
here
's
nothing
found
of
a
reference
to
the
former
:
to
judge
it
otherwise
,
would
confound
the
use
of
Wills
and
Codicils
,
and
the
difference
between
them
.
'T
is
true
,
that
a
Man
may
make
partial
Wills
of
several
parts
of
his
Estate
,
and
all
may
stand
together
;
but
then
they
must
be
declared
to
be
Wills
concerning
particular
things
;
and
they
are
but
several
pieces
of
the
same
Will
,
tho'
written
in
different
Papers
:
but
then
in
pleading
one
of
them
,
you
must
not
generally
say
he
made
ult'
voluntatem
,
but
ultimam
voluntat
'
of
such
a
thing
:
but
here
't
is
aliud
testamentum
,
i.e.
a
general
Testament
.
The
2
Rich.
3.
fol.
3.
is
directly
thus
,
The
Defendant
pleads
one
Will
,
the
Plaintiff
replies
another
,
and
exception
taken
,
because
he
did
not
traverse
the
former
,
but
held
needless
to
do
so
,
quia
per
ult'
testamentum
ut
placitatur
generaliter
,
primum
testamentum
revocatur
in
omnibus
:
and
it
cannot
be
pretended
,
that
this
might
be
the
same
Will
written
over
again
;
for
if
so
,
it
could
not
be
aliud
,
it
would
be
the
same
;
these
are
not
quibbles
upon
words
;
for
can
it
be
said
,
that
this
is
a
Devise
by
the
last
Will
of
Sir
H.
when
there
's
another
:
Nor
is
it
an
Objection
,
that
the
Contents
do
not
appear
;
for
the
Will
belongs
not
to
the
Heir
to
keep
,
and
consequently
not
to
shew
;
in
pleading
he
is
not
bound
to
a
profert
;
't
is
enough
that
there
was
a
subsequent
Will.
And
as
the
latter
may
confirm
or
be
consistent
with
the
former
,
so
it
may
not
be
so
;
and
the
consistency
is
not
to
be
presumed
,
especially
against
an
Heir
at
Law
,
and
in
possession
.
In
the
Case
of
Coward
and
Marshal
,
3
Cro.
721.
the
Substance
of
both
are
declared
,
and
thereby
they
appeared
to
be
consistent
,
and
consequently
no
Revocation
:
here
Eadem
mens
sic
testandi
,
the
same
intent
of
disposing
his
Estate
the
same
way
,
can
never
be
thought
to
continue
,
for
then
there
had
been
no
occasion
of
making
another
Will
.
If
this
be
not
a
Revocation
,
't
is
an
act
void
,
and
to
no
purpose
,
which
is
never
to
be
intended
.
Then
't
was
insisted
on
,
That
the
bare
act
of
making
and
publishing
another
Will
,
is
a
Revocation
,
and
the
finding
of
the
Contents
unknown
is
void
:
If
this
be
not
a
Will
,
't
is
a
Codicil
,
and
that
is
contrary
to
the
finding
of
the
Jury
;
for
the
Verdict
mentions
a
second
Substantive
independent
Will
,
without
reference
to
the
former
;
which
second
Will
is
a
Revocation
:
and
therefore
't
was
prayed
that
the
Judgment
should
be
reversed
.
It
was
argued
on
the
other
side
,
in
behalf
of
Mr.
Nosworthy
,
That
this
was
no
Revocation
;
that
here
had
been
a
great
stir
about
nothing
,
for
that
nothing
appeared
against
his
Title
;
that
a
Man
may
make
a
Will
of
several
things
at
several
times
,
and
they
both
shall
stand
;
that
a
deliberate
Will
being
made
,
the
Contents
whereof
are
known
,
shall
never
be
revoked
by
that
which
is
not
known
:
nothing
can
be
judged
upon
that
which
doth
not
appear
,
and
consequently
it
can
never
be
judged
to
be
a
Revocation
:
Here
's
another
Will
,
and
nothing
is
given
by
it
,
nothing
is
found
to
be
given
by
this
subsequent
Will.
The
form
of
entring
the
ancient
Judgments
was
,
Quibus
visis
lectis
&
auditis
&
per
Curiam
plene
intellectis
,
now
what
is
here
read
to
make
a
Revocation
.
2
Rich.
3.
fol.
3.
is
with
the
Judgment
,
for
there
't
is
replied
that
he
made
another
Executor
;
there
are
the
Contents
pleaded
,
sufficient
to
maintain
his
Count
,
and
answer
the
Defendant's
Bar
;
the
Book
is
,
per
hoc
quod
alius
Executor
nominatur
.
Then
was
cited
1
Cro.
51.
the
Reason
given
is
,
quia
in
dubiis
non
presumitur
pro
testamento
,
and
here
being
a
good
Will
,
at
the
most
the
other
is
doubtful
.
1
Cro.
114
,
115.
Several
Wills
of
several
things
may
be
made
.
And
the
same
Book
595.
10
Car.
1.
which
Refolution
Serjeant
Maynard
in
arguing
this
Case
below
,
said
that
he
heard
in
that
Court
of
Kings
Bench
:
'T
is
the
Subject
Matter
of
the
Wills
and
the
Repugnancy
which
makes
the
Revocation
.
In
this
very
Case
,
in
the
Exchequer
,
upon
an
English
Bill
,
't
was
held
by
Hale
to
be
no
Revocation
,
't
is
in
Hardres
375.
Coke
upon
Littleton
,
which
hath
been
quoted
,
Comments
upon
these
words
several
Devises
,
and
if
there
be
no
Devise
in
the
second
,
there
can
be
no
sense
or
meaning
in
it
,
and
consequently
unless
some
meaning
appear
,
it
can
never
be
an
Evidence
of
a
change
of
his
Mind
;
as
it
might
be
a
Revocation
,
so
it
might
be
otherwise
;
and
he
that
will
have
it
to
be
a
Revocation
,
must
prove
it
to
be
such
:
No
Man
can
affirm
that
every
Will
must
necessarily
be
a
Revocation
of
a
former
,
for
the
second
Will
might
be
of
another
thing
,
as
Goods
,
or
of
another
parcel
of
Land
,
or
in
confirmation
of
the
former
.
If
in
these
,
and
many
other
like
Cases
,
a
latter
Will
is
no
Revocation
of
a
former
,
how
can
it
possibly
with
justice
be
concluded
,
that
a
latter
Will
without
Contents
,
Purport
,
or
Effect
,
shall
be
a
Revocation
of
a
former
.
And
tho'
the
Jury
have
in
this
Case
believed
the
Witnesses
,
and
found
that
another
Will
was
made
,
it
may
be
of
dangerous
Consequence
to
encourage
and
construe
this
a
Revocation
,
without
knowing
the
Contents
;
for
no
Will
can
be
secure
against
the
swearing
of
a
new
Will
,
if
there
be
no
necessity
of
shewing
it
,
or
proving
what
it
was
.
For
which
,
and
other
Reasons
,
it
was
prayed
that
the
Judgment
might
be
affirmed
,
and
it
was
affirmed
.
Sir
Simon
Leach
&
al'
Plaintiffs
,
Versus
J.
Thomson
Lessee
of
Charles
Leach
Defendant
.
WRit
of
Error
to
Reverse
a
Judgment
given
in
B.
R.
upon
a
Special
Verdict
on
a
Trial
at
Bar
in
Ejectment
brought
by
Thomson
on
the
Demise
of
Charles
Leach
:
the
Special
Verdict
finds
,
that
Nicholas
Leach
was
seized
of
the
Lands
in
question
in
his
Demesne
as
of
Fee
;
and
being
so
seized
9
Nov.
19
Car.
2.
he
makes
his
last
Will
,
and
thereby
devises
the
Premisses
to
the
Heirs
Males
of
his
Body
lawfully
to
be
begotten
;
and
for
default
of
such
Issue
,
to
Simon
Leach
his
Brother
for
his
Life
,
and
after
his
Decease
to
the
first
Son
of
the
Body
of
the
said
Simon
lawfully
to
be
begotten
,
and
the
Heirs
Males
of
the
Body
of
such
first
Son
lawfully
to
be
begotten
;
and
for
default
of
such
Issue
,
to
the
second
,
&c.
and
so
on
to
the
eighth
Sons
,
&
of
all
and
every
other
Sons
,
&c.
and
for
default
of
such
Issue
,
to
Sir
Simon
Leach
,
his
Kinsman
,
Son
and
Heir
of
Simon
Leach
of
Cadley
in
Com'
Devon
'
Esq
;
deceased
,
and
the
Heirs
Males
of
his
Body
;
and
for
default
of
such
Issue
,
to
the
right
Heirs
of
him
the
said
Nicholas
for
ever
.
Then
they
find
,
That
the
Lands
in
the
Declaration
,
and
those
in
the
Will
,
are
the
same
;
that
afterwards
,
viz.
10
Apr.
20
Car.
2.
Nicholas
died
seized
without
Issue
of
his
Body
;
that
after
his
Death
,
the
said
Simon
his
Brother
and
Heir
Entred
,
and
was
seized
in
his
Demesne
ut
de
libero
tenemento
for
term
of
his
Life
,
Remainder
to
the
first
Son
of
the
Body
of
the
said
Simon
the
Brother
,
and
the
Heirs
of
the
Body
of
such
first
Son
lawfully
to
be
begotten
;
and
for
default
of
such
to
the
second
,
&c.
Remainder
to
Sir
Simon
in
Tail
,
Remainder
to
the
said
Simon
the
Brother
,
and
his
Heirs
belonging
.
That
Simon
Leach
the
Brother
being
so
seized
,
afterwards
viz.
20
Aug.
20
Car.
2.
took
to
Wife
Anne
the
Daughter
of
Vnton
Crook
,
that
afterwards
the
20
Aug.
25
Car.
2.
he
being
so
seized
did
Make
,
Seal
,
and
as
his
Deed
deliver
a
certain
Writing
,
purporting
a
Surrender
of
the
said
Lands
to
the
said
Sir
Simon
Leach
,
which
Writing
was
prout
,
&c.
Then
they
find
that
the
said
Simon
Leach
the
Brother
,
non
fuit
compes
mentis
sue
tempore
confectionis
,
sigillationis
,
&
deliberationis
scripti
illius
,
&c.
That
afterwards
,
viz.
10
Nov.
25
Car.
2.
the
said
Simon
the
Brother
had
Issue
of
his
Body
,
on
the
Body
of
the
said
Anne
his
Wife
Charles
Leach
;
that
the
said
Simon
died
,
and
Charles
Leach
the
Lessor
of
the
Plaintiff
is
eldest
Son
and
Heir
of
the
said
Simon
,
&c.
Et
si
videbitur
Cur'
quod
,
&c.
Upon
this
Verdict
there
was
Judgment
for
the
Plaintiff
.
And
now
it
was
argued
,
That
the
said
Judgment
was
Erroneous
;
and
said
that
in
the
Case
there
were
two
Queries
,
1.
If
this
were
a
good
Surrender
,
there
being
no
Acceptance
or
Agreement
by
Sir
Simon
before
the
Birth
of
the
first
Son
,
Charles
:
But
this
was
not
insisted
on
before
,
and
therefore
waived
here
,
the
same
having
been
adjudged
by
the
Lords
to
be
a
good
Surrender
,
even
to
an
Infant
without
Acceptance
,
in
another
Action
between
the
same
Parties
,
which
you
may
see
reported
in
2
Ventris
198
,
208.
Then
it
was
argued
on
the
second
Query
,
That
the
Lessor
of
the
Plaintiff
in
the
Ejectment
,
being
a
Remainder
Man
in
Tail
,
cannot
take
any
Advantage
of
his
Father's
Lunacy
:
That
in
this
Case
he
could
claim
no
Title
,
as
Heir
at
Law
,
to
his
Father
or
Uncle
,
because
of
the
intermediate
Remainder
to
the
Defendant
in
Tail
;
so
that
quoad
this
Estate
,
he
is
as
a
meer
Stranger
,
and
not
as
Heir
;
and
tho'
he
were
able
to
avoid
it
by
Writ
,
or
the
like
,
yet
it
being
once
good
,
the
particular
Estate
of
Simon
the
Father
of
Charles
was
determined
,
before
the
Contingent
Remainder
to
the
first
Son
could
take
place
,
and
consequently
it
can
never
after
revive
.
Then
the
Question
is
,
Whether
this
Surrender
by
a
Non
compos
,
being
an
act
done
by
himself
,
and
not
by
Attorney
,
be
void
or
only
voidable
:
There
's
no
express
Case
that
a
Surrender
,
by
one
who
is
Non
compos
to
him
in
Remainder
,
is
void
.
Perhaps
't
will
be
said
,
as
it
hath
been
,
That
the
Acts
of
a
Madman
are
meer
Nullities
by
all
Laws
in
the
World
.
But
to
this
't
is
an
Answer
,
That
the
Laws
of
England
have
made
good
and
honest
Provisions
for
them
,
so
as
to
avoid
their
Acts
for
the
Benefit
of
the
Party
,
of
the
King
and
of
the
Heir
.
But
it
was
repeated
,
that
this
was
a
Contingent
Remainder
,
and
if
it
could
not
vest
when
the
particular
Estate
did
determine
,
whether
by
Death
or
Surrender
,
it
never
could
vest
at
all
;
for
a
future
Right
to
defeat
the
Surrender
,
as
Heir
,
cannot
support
such
a
Contingency
;
a
present
right
of
Entry
would
;
but
if
no
such
present
right
,
the
Remainder
is
gone
for
ever
;
and
here
was
no
such
in
Charles
.
If
Tenant
for
Life
make
a
Feoffment
with
condition
of
Re-entry
,
the
Contingent
Remainder
shall
never
arise
again
,
tho'
the
Condition
be
broken
,
and
a
Re-entry
were
made
.
So
is
the
Case
of
Purefoy
versus
Rogers
,
2
Saund.
380.
Wigg
versus
Villers
,
2
Rolls
Abridg.
796.
and
then
Charles
cannot
avoid
this
Deed
;
for
the
avoiding
of
a
Deed
,
is
to
take
somewhat
out
of
the
way
,
in
order
to
the
revesting
of
somewhat
;
but
here
was
nothing
to
work
upon
;
for
if
the
Surrender
were
good
for
a
Moment
,
the
particular
Estate
for
Life
was
once
gone
,
and
consequently
for
ever
;
and
this
must
hold
,
unless
the
Act
were
totally
void
.
Then
't
was
argued
,
That
during
the
Life
of
the
Party
,
't
was
only
voidable
for
the
King
by
Office
;
no
Man
can
Stultifie
himself
;
and
so
is
the
great
Resolution
in
Beverly's
Case
,
4
Rep.
and
1
Inst.
247.
and
Whittingham's
Case
,
8
Rep.
and
if
it
be
not
void
as
to
himself
,
it
cannot
be
void
as
to
others
.
And
tho'
Fitzh
.
in
his
N.
B.
says
that
he
himself
may
have
a
dum
non
fuit
compos
,
that
is
not
agreeable
to
the
received
Law
;
for
Beverly's
Case
was
never
shaken
till
now
;
and
Fitzh
.
supposes
it
only
voidable
,
by
saying
that
Writ
doth
lye
.
There
is
also
a
Reason
for
this
Rule
of
Law
,
that
a
Man
shall
not
disable
himself
by
pretence
of
Distraction
,
because
if
the
Pretence
were
true
,
he
had
no
memory
,
and
consequently
could
not
know
or
remember
that
he
did
such
an
Act
,
and
therefore
't
is
,
as
it
were
,
impossible
for
him
to
be
able
to
say
that
he
was
so
distracted
when
he
did
it
:
't
is
for
him
to
say
what
't
is
not
possible
for
him
to
know
:
But
they
would
compare
this
to
the
Case
of
an
Infant
,
yet
even
there
all
his
Acts
are
not
void
;
his
Bond
is
only
avoidable
;
he
cannot
plead
that
't
is
not
his
Deed
:
'T
is
true
,
that
Acts
apparently
to
his
prejudice
cannot
be
good
,
as
1
Cro.
502.
Suppose
a
Non
compos
Signs
,
Seals
,
and
Delivers
such
a
Deed
,
and
after
recovers
his
Senses
,
and
agrees
to
it
,
would
not
this
be
a
good
Surrender
from
the
first
,
Perkins
sect.
23.
1
Inst.
2.
and
if
it
can
be
made
good
by
a
subsequent
Agreement
,
't
was
not
totally
void
,
and
if
not
totally
void
,
't
is
with
the
Plaintiff
in
Error
:
The
Law
besides
is
very
tender
in
case
of
Freeholds
,
to
make
Conveyances
void
by
bare
Averments
;
and
this
would
be
of
dangerous
Consequence
,
if
when
there
was
no
Inquisition
or
Commission
of
Lunacy
during
Life
,
that
thirty
or
forty
years
after
a
Conveyance
,
it
should
be
in
the
power
of
a
Stranger
to
say
,
that
the
Vendor
was
mad
;
't
will
make
Purchasors
unsafe
:
Acts
solemnly
done
,
ought
to
have
a
solemn
Avoidance
.
The
1
Hen.
5.
cap.
5.
Fine
to
be
void
;
't
is
void
as
a
Bar
,
but
yet
it
makes
a
Discontinuance
,
and
must
be
solemnly
avoided
.
Lincoln
Colledge
Case
,
3
Rep.
Stroud
and
Marshal
,
3
Cro.
398.
Dett
sur
Oblig
'
The
Defendant
pleads
that
at
the
time
,
he
was
of
non
sane
memory
,
and
on
demurrer
adjudged
no
Plea
;
and
the
Opinion
of
Fitzh
.
held
not
to
be
Law
.
And
3
Cro.
622.
50
Assis
.
2.
Fitzh
.
Issue
53.
a
Release
by
a
Non
compos
,
which
is
much
the
same
with
a
Surrender
,
only
one
works
upwards
,
and
the
other
downwards
;
and
after
Recovery
the
Party
agrees
to
it
,
the
same
is
binding
,
39
Hen.
6.42
.
and
49
Edw.
3.13
.
Then
was
mentioned
the
Provision
of
the
Law
in
these
Cases
,
besides
the
Care
of
the
Court
of
Chancery
,
which
protects
the
weak
and
unwary
by
Rules
of
Equity
.
There
's
a
Writ
de
Ideota
Inquirend
'
,
and
the
express
direction
of
the
Writ
is
to
enquire
quas
terras
alienavit
,
which
shews
that
't
is
not
void
.
The
Statute
of
Prerogativa
Regis
,
is
express
Authority
for
it
;
the
Reason
given
is
,
that
such
Persons
Lands
should
not
be
aliened
to
their
hurt
or
the
King
's
.
It
must
be
agreed
,
that
before
Office
found
the
King
cannot
avoid
the
Alienation
,
even
of
an
Ideot
:
and
then
after
Office
,
the
Practise
is
to
Issue
a
Scire
facias
to
him
in
possession
,
or
to
the
Alienee
;
and
so
is
Fitzh
.
tit.
Scire
facias
pl.
2.
106.
All
these
Methods
prescribed
by
the
Law
would
be
useless
,
if
the
Acts
themselves
were
void
:
Then
't
is
as
certain
,
that
the
Office
must
be
found
during
the
Parties
Life
,
and
during
the
insanity
,
and
not
afterwards
.
If
there
had
been
an
Office
,
't
would
only
avoid
it
with
a
prospect
,
as
it
would
be
in
case
of
an
Heir
after
death
:
Even
after
an
Office
,
the
King
cannot
have
the
Profits
from
the
time
of
the
Alienation
,
which
shews
it
not
it
not
void
from
the
beginning
.
If
a
Suit
be
against
an
Ideot
after
Inquisition
,
the
Ideot
cannot
plead
it
,
but
the
King
shall
send
a
Supersedeas
to
the
Judges
,
suggesting
the
Inquisition
;
so
that
even
then
the
Party
himself
cannot
avoid
it
.
As
to
the
other
way
of
avoiding
it
by
the
Heir
,
it
must
be
by
Writ
or
Entry
;
and
till
Entry
or
Writ
the
Act
remains
good
.
But
here
's
no
Contest
with
the
Party
himself
,
or
with
his
Heirs
,
but
with
a
Remainder
Man
.
This
Act
of
Surrender
was
no
tortious
Act
,
it
wrought
no
discontinuance
:
there
was
no
Trust
in
him
to
preserve
the
Contingent
Remainder
:
A
Feoffment
with
livery
is
allowed
not
to
be
void
,
and
yet
that
may
do
a
wrong
by
discontinuance
,
&c.
As
to
the
pretence
that
a
Warrant
of
Attorney
to
make
livery
is
void
,
that
doth
not
reach
this
Case
;
for
here
's
an
Act
done
by
himself
,
which
would
have
passed
the
Estate
as
by
and
from
himself
,
if
he
had
been
of
sound
Mind
.
Then
't
was
desired
that
the
other
side
would
shew
any
such
Case
as
this
,
whereas
multitudes
of
Gifts
,
Grants
,
Releases
,
Bonds
,
and
other
Specialties
,
sealed
and
delivered
by
the
Party
himself
,
are
allowed
to
be
good
;
and
the
same
reason
holds
for
a
Surrender
made
in
Person
;
and
there
's
no
difference
between
a
livery
made
in
Person
and
a
Surrender
;
the
Act
being
Personal
,
and
not
by
another
under
his
Authority
,
makes
the
livery
good
;
and
so
it
ought
to
be
here
:
18
Ed.
4.2
.
Perkins
sect.
139.
And
't
is
observable
in
39
Hen.
6.42
.
per
Priscott
,
upon
the
Inquisition
,
't
is
reseized
and
revested
into
the
Interest
of
the
Ideot
,
and
consequently
of
the
King
:
and
if
revested
,
't
was
once
out
of
him
.
Now
here
's
no
prejudice
to
the
Man
himself
by
this
Opinion
;
he
is
taken
care
of
,
and
his
Acts
avoided
by
the
King
on
his
behalf
;
and
his
Heirs
may
avoid
them
:
But
that
Strangers
should
take
notice
of
them
as
void
,
was
denied
;
and
therefore
prayed
that
the
Judgment
should
be
reversed
.
On
the
other
side
it
was
argued
with
the
Judgment
,
That
this
never
was
a
Surrender
;
that
't
was
against
sense
and
reason
,
to
allow
the
Acts
of
a
Madman
,
a
Person
distracted
,
to
be
valid
to
any
purpose
;
that
in
case
of
livery
it
had
been
allowed
to
be
only
voidable
,
by
reason
of
the
solemnity
and
notoriety
of
the
thing
;
but
in
case
of
a
Deed
,
or
a
Thing
passing
only
by
Deed
,
't
was
otherwise
;
and
Bracton
,
Britton
,
Fleta
,
and
the
Register
were
cited
,
where
't
is
declared
who
can
take
,
and
who
can
alien
,
and
that
a
Madman
cannot
alien
;
and
Fitzh
.
is
of
Opinion
,
that
the
Writ
of
dum
non
fuit
compos
may
be
brought
by
himself
;
that
there
was
a
notion
scattered
in
the
Books
,
that
such
Acts
are
only
voidable
;
but
the
reason
of
the
Law
is
otherwise
.
39
Hen.
6.42
.
hath
the
distinction
;
that
Feoffment
with
livery
is
good
,
but
if
livery
be
by
Warrant
of
Attorney
,
't
is
void
:
If
it
be
a
Feoffment
with
Warranty
by
Deed
,
and
possession
delivered
with
his
own
hands
,
yet
the
warranty
is
void
,
because
the
Deed
is
void
.
Perk.
5.
The
Deed
of
a
Mad-man
is
void
:
if
he
grants
a
Rent
,
't
is
void
.
If
an
Infant
makes
a
Warrant
of
Attorney
,
't
is
void
;
so
is
Whittingham's
Case
:
A
Deed
and
a
Will
are
not
to
be
distinguished
;
and
by
the
same
reason
that
the
one
is
void
,
the
other
is
so
.
Finch
.
102.
is
general
;
All
Deeds
of
a
Man
of
non
sane
memorie
are
null
:
12
Rep.
Shulter's
Case
,
'T
is
an
offence
to
procure
a
Deed
from
him
.
The
Civil
Law
makes
all
his
Acts
,
which
he
doth
without
consent
of
his
Curator
,
to
be
void
:
A
Madman
is
taken
pro
absente
:
'T
is
a
Rule
unaccountable
,
That
a
Man
shall
not
stuitifie
himself
;
that
he
shall
not
be
able
to
excuse
himself
by
the
Visitation
of
Heaven
,
when
he
may
plead
Duress
from
Men
,
to
avoid
his
own
Act.
'T
is
absurd
to
say
,
That
a
Deed
procured
from
a
Man
in
a
Fever
,
or
in
Bethlehem
,
shall
be
valid
to
any
purpose
.
Fitzherbert
,
who
was
a
good
Lawyer
,
ridicules
the
pretence
,
and
maintains
,
That
he
himself
may
avoid
such
Act.
Then
were
cited
2
Inst.
14.
Lloyd
and
Gregory
,
1
Cro.
501
,
502.
Perkins
tit
.
Grant
.
13.
Then
it
was
said
,
That
in
this
Case
there
needs
not
much
Argument
,
the
Reason
of
the
Thing
exposes
the
pretended
Law
.
And
the
Judges
have
declared
that
this
Surrender
is
void
;
the
word
amens
or
demens
,
imply
that
the
Man
hath
no
Mind
,
and
consequently
could
make
no
Conveyance
.
Wherefore
't
was
prayed
that
the
Judgment
should
be
affirmed
;
and
without
much
debate
it
was
accordingly
affirmed
.
Henry
Earl
of
Lincoln
by
Susanna
Countess
of
Lincoln
his
Mother
,
and
Procheine
Amye
Appellant
,
Versus
Samuel
Roll
Esq
;
Vere
Booth
,
Hugh
Fortescue
Esq
;
and
Bridget
his
Wife
&
al'
Respondents
.
AApeal
from
a
Decree
of
Dismission
in
Chancery
:
The
Case
was
thus
;
Edward
late
Earl
of
Lincoln
,
who
was
Son
and
Heir
of
Edward
,
Lord
Clinton
,
the
only
Son
of
Theophilus
Earl
of
Lincoln
deceased
,
being
seized
in
Fee
of
the
Mannors
of
,
&c.
after
his
Mothers
decease
(
who
is
yet
living
)
and
of
other
Lands
of
about
3000
l.
per
Annum
,
part
of
the
ancient
Estate
of
the
Family
.
And
designing
that
in
default
of
Issue-Male
by
himself
,
his
Estate
should
go
with
the
Honour
,
made
his
Will
20
Sept.
34
Car.
2.
and
thereby
devised
the
Premisses
to
Sir
Francis
Clinton
for
Life
,
Remainder
to
his
first
and
other
Sons
in
Tail-Male
,
with
many
Remainders
over
to
such
Persons
in
Tail-Male
,
to
whom
the
Honour
might
descend
;
and
directed
that
his
Houshold
Goods
at
......
should
remain
there
as
Heir
Loomes
,
to
be
enjoyed
by
the
next
Heir-Male
,
who
should
be
Heir
of
Lincoln
,
and
made
the
said
Sir
Francis
,
the
Appellants
Father
,
and
after
his
Death
,
Earl
of
Lincoln
,
Executor
.
On
the
sixth
of
Novemb.
36
Car.
2.
Earl
Edward
made
another
Will
in
writing
in
like
manner
,
with
the
alteration
of
some
Personal
Legacies
;
and
afterwards
in
April
1686.
and
in
Dec.
1690.
did
republish
his
Will.
Then
Earl
Edward
sold
part
to
Richard
Wynne
Esq
;
for
24491
l.
3
s.
6
d.
and
mortgaged
the
Premisses
in
question
to
him
for
12200
l.
Then
Earl
Edward
by
Deeds
of
Lease
and
Release
,
dated
the
27th
and
28th
of
April
1691.
conveys
his
whole
Estate
to
the
Respondents
Davenport
and
Townsend
,
and
their
Heirs
,
to
the
use
of
him
and
his
Heirs
,
till
his
then
intended
Marriage
should
take
effect
:
And
after
such
Marriage
had
,
then
as
to
part
,
in
trust
for
his
intended
Wife
,
and
her
Heirs
and
Assigns
for
ever
:
And
as
to
the
rest
,
in
trust
to
permit
the
said
Earl
to
receive
the
Profits
during
his
Life
;
and
after
his
decease
,
to
sell
the
same
for
the
best
price
,
and
out
of
the
Money
raised
by
Sale
,
to
defray
the
Funeral
Expences
,
and
pay
his
Debts
,
and
deliver
the
surplus
,
as
he
should
(
by
his
last
Will
and
Testament
in
writing
,
attested
by
three
Witnesses
,
or
by
another
Deed
in
writing
so
attested
)
appoint
;
and
for
want
thereof
to
the
Executors
and
Administrators
of
the
Earl
;
with
a
Proviso
,
That
the
said
Earl
,
by
his
last
will
and
Testament
,
or
any
other
Deed
in
writing
(
to
be
thereafter
by
him
made
and
executed
,
and
attested
as
aforesaid
)
might
alter
,
change
,
determine
,
or
make
void
all
or
any
the
Trusts
aforesaid
;
and
for
want
of
such
after
to
be
made
,
will
or
deed
,
then
in
trust
for
the
said
Earl
Edward
,
his
Heirs
and
Assigns
for
ever
;
Earl
Edward
died
without
Issue
of
his
Body
,
and
without
Marriage
.
The
Appellant
exhibited
a
Bill
to
have
the
said
Deeds
of
Lease
and
Release
set
aside
,
and
to
have
the
Will
executed
.
The
Respondents
,
as
Heirs
,
insist
upon
the
Deeds
as
a
Revocation
;
and
their
Heirship
was
thus
:
Theophilus
Earl
had
Issue
Edward
,
Katharine
,
Arabella
,
and
Margaret
;
Edward
died
in
the
Life
time
of
Theophilus
,
leaving
Issue
Edward
late
Earl
of
Lincoln
;
Katharine
by
Sir
George
Booth
had
Issue
the
Respondent
Veer
Booth
;
Arabella
by
Robert
Roll
had
Issue
Samuel
Roll
;
and
Margaret
married
Hugh
Buscowen
,
and
had
Issue
the
Respondent
Bridget
Fortescue
.
And
the
Court
,
assisted
with
the
two
Chief
Justices
,
and
Mr.
Justice
Powel
saw
no
Cause
to
relieve
the
Appellant
.
And
now
it
was
argued
with
the
Appeal
,
That
the
Dismission
was
Erroneous
,
there
being
Cause
for
Relief
,
for
that
the
Marriage
never
did
take
effect
,
nor
any
serious
Overture
or
Treaty
was
made
by
the
said
Earl
on
that
behalf
;
so
as
the
said
Earl
did
continue
,
and
at
the
time
of
his
death
was
seized
of
the
same
Estate
in
the
Premisses
he
had
at
the
time
of
making
and
publishing
the
Will
;
that
if
at
Law
the
Deeds
of
Lease
and
Release
were
in
strictness
a
revocation
of
the
Will
,
yet
in
Equity
they
ought
not
to
be
construed
a
Revocation
of
the
said
Will
,
so
often
and
so
solemnly
and
deliberately
made
and
published
,
and
upon
so
good
a
Consideration
as
the
support
of
the
Honour
;
that
the
said
Will
was
the
Result
of
the
Earls
continued
Intentions
throughout
his
Life
,
and
the
Deeds
were
only
the
effect
of
some
sudden
Fancy
or
Passion
;
and
even
by
those
Deeds
no
benefit
was
designed
to
the
Respondents
;
for
the
disposition
of
the
Surplus
of
what
should
be
raised
by
the
Sale
,
was
to
be
to
his
Executor
Sir
F.
C.
the
Appellants
Father
;
and
that
did
evidence
a
continued
Kindness
to
him
,
who
never
had
offended
him
,
and
no
regard
to
the
Respondents
,
who
(
tho'
they
were
his
Heirs
general
)
were
related
only
at
a
distance
,
and
scarcely
known
by
him
;
and
very
well
provided
for
,
by
great
Portions
raised
out
of
the
Estate
for
their
Mothers
.
Then
't
was
argued
that
this
Estate
was
meerly
an
equitable
one
,
and
consequently
Equity
only
ought
to
govern
the
disposition
of
it
:
here
's
no
express
Revocation
pretended
;
that
a
Mortgage
in
Fee
is
no
Revocation
,
for
in
Equity
it
doth
not
make
the
Estate
anothers
:
Here
is
a
Noble
Peer
,
who
is
to
sit
in
the
Seat
or
Place
of
his
Ancestors
,
and
therefore
no
Presumption
,
Intendment
or
forced
Implication
ought
to
be
against
him
or
his
Interest
;
that
this
was
designed
to
take
effect
,
in
case
the
Marriage
was
had
,
and
not
otherwise
;
that
here
was
no
intention
to
revoke
,
but
upon
the
Contingency
of
his
Marriage
:
And
there
was
cited
Zouch
and
Barker's
Case
1625.
in
the
Lord
Coventry's
time
,
Chancery
Rep.
and
the
Lord
Boucher's
Case
in
Edward
the
Sixth's
time
;
the
Case
was
said
to
be
in
Dyer
,
left
as
a
Query
,
and
in
1
Rolls
Abridg.
And
for
these
,
and
many
other
Reasons
and
Authorities
urged
,
't
was
prayed
that
the
Dismission
should
be
Reversed
,
and
the
Appellant
Relieved
.
On
the
other
side
't
was
insisted
,
That
tho'
this
was
not
an
express
Revocation
by
the
use
of
words
declaring
it
to
be
such
,
yet
't
was
a
true
,
legal
,
and
effectual
Revocation
;
that
these
Deeds
of
Lease
and
Release
did
alter
the
Estate
;
that
here
't
was
for
payment
of
Debts
,
as
well
as
in
consideration
of
the
intended
Marriage
;
that
here
was
a
manifest
change
of
his
Intention
;
that
both
Will
and
Deed
were
voluntary
and
inconsistent
,
and
therefore
the
latter
must
stand
;
that
here
were
no
Children
or
Creditors
claiming
under
the
Will
;
that
tho'
the
Subject
Matter
were
an
equitable
Interest
,
yet
Equity
ought
to
follow
the
Rules
of
Law
;
that
the
Law
made
this
a
good
Revocation
,
and
Equity
ought
to
judge
it
the
same
way
,
unless
Fraud
were
proved
to
be
used
in
the
procuring
of
the
Execution
of
these
Deeds
;
that
the
reason
why
a
Mortgage
even
in
Fee
,
is
not
a
Revocation
,
is
because
a
Mortgage
doth
carry
upon
the
face
of
it
a
Defeasance
;
't
is
not
reckoned
an
Inheritance
to
the
Heir
of
the
Mortgage
,
but
shall
be
Personal
Estate
,
and
Assets
to
pay
the
Mortgagee's
Debts
.
This
Deed
was
revocable
by
an
after
Will
,
which
shews
the
Party
to
have
no
regard
for
any
former
Will
,
nor
is
there
any
reference
to
the
Will
then
in
being
:
If
a
Marriage
had
happened
,
't
would
be
agreed
to
have
been
a
Revocation
;
and
if
so
,
when
was
the
Will
revoked
?
by
what
Act
?
by
the
Deed
,
or
by
the
Marriage
?
That
it
was
said
that
it
certainly
would
have
been
revoked
by
the
Deed
,
and
consequently
ought
to
be
construed
a
Revocation
,
tho'
no
Marriage
did
ensue
:
Revocations
are
the
same
in
Equity
as
at
Law
;
and
so
was
it
held
in
the
Case
of
the
Earls
of
Bathe
and
Mountague
.
The
Statute
of
Frauds
never
was
thought
to
extend
to
such
Revocations
as
these
:
Tho'
Earl
Edward's
Intentions
were
once
to
support
the
Honour
with
the
Estate
,
yet
it
was
always
in
his
power
to
alter
it
:
The
Lease
and
Release
passed
the
Equity
of
Redemption
,
and
consequently
't
is
the
same
now
,
between
the
Appellant
and
Respondents
,
as
if
there
had
been
no
Mortgage
in
the
Case
.
'T
was
further
urged
,
That
a
Will
is
but
an
imperfect
Conveyance
,
inchoate
only
,
and
ambulatory
(
as
the
Books
term
it
)
till
the
death
of
the
Party
;
and
another
Will
may
revoke
it
,
and
with
greater
reason
may
a
Deed
,
which
alters
the
Estate
,
and
shews
a
change
of
the
Intention
of
the
Person
who
was
Owner
of
it
:
There
's
no
need
of
a
Consideration
to
warrant
the
Revocation
of
a
Will
;
there
needs
no
reason
to
be
given
for
it
;
't
is
only
the
Mind
of
the
Party
which
both
makes
and
revokes
the
Will
.
A
Will
is
only
the
signification
of
a
Man's
purpose
,
how
his
Estate
shall
go
after
his
death
;
and
tho'
it
be
solemnly
made
in
writing
,
signed
,
published
,
and
attested
,
yet
if
he
do
any
intermediate
Act
,
whereby
it
must
be
necessarily
inferred
,
that
such
Purpose
and
Intention
of
his
did
not
continue
,
the
Consequent
must
be
,
that
what
was
done
before
,
as
to
such
Will
,
is
totally
defeated
;
and
unless
it
be
set
up
anew
by
a
Republication
,
't
is
as
no
Will
.
The
Case
of
Mountague
and
Jeffryes
,
1
Rolls
Abridg.
615.
and
Moore
429.
proves
this
:
If
a
Conveyance
at
Law
shews
an
Intent
different
from
the
Will
as
to
Lands
,
't
will
be
a
Revocation
,
tho'
such
Conveyance
be
not
perfect
to
all
purposes
.
Hodgkinson
versus
Wood
,
Cro.
Car.
23.
'T
is
a
Revocation
,
tho'
the
Owner
should
be
in
again
,
as
of
his
old
Reversion
.
The
Case
of
Lestrange
and
Temple
14
Car.
2.
reported
in
Sid.
90.
1
Keble
357.
is
stronger
;
but
this
is
stronger
yet
,
because
't
is
not
to
the
old
use
,
but
limited
in
a
different
manner
;
't
is
a
qualified
Fee
,
and
to
be
determined
upon
the
qualifications
taking
effect
,
and
so
cannot
be
the
old
Estate
;
and
if
it
were
,
yet
't
is
a
Revocation
,
and
there
's
no
Circumstance
in
the
Case
,
that
can
direct
a
Court
of
Equity
to
differ
from
the
Law
;
and
therefore
it
was
prayed
,
that
the
Decree
of
Dismission
might
be
affirmed
;
and
it
was
affirmed
.
John
Fox
Gen'
Plaintiff
,
Versus
Simon
Harcourt
Arm'
Defendant
.
WRit
of
Error
on
a
Judgment
in
B.
R.
The
Case
was
upon
a
Special
Verdict
,
in
an
Action
of
the
Case
,
upon
an
Indebitus
Assumpsit
for
Moneys
received
to
the
Plaintiff's
use
,
brought
there
by
Harcourt
versus
Fox
,
which
Verdict
finds
,
the
37
Hen.
8.
cap.
1.
intituled
,
a
Bill
for
Custos
Rotulorum
and
Clerkship
of
the
Peace
.
Then
they
find
that
1
Will
.
&
Mar.
intituled
,
An
Act
for
enabling
Lords
Commissioners
for
the
Great
Seal
to
execute
the
Office
of
Lord
Chancellor
or
Lord
Keeper
,
and
several
Clauses
therein
concerning
this
Matter
.
Then
they
find
that
John
Earl
of
Clare
was
by
Letters
Patents
,
dated
the
9th
day
of
July
,
Anno
1
Will
.
&
Mar.
according
to
the
37
Hen.
8.
made
Custos
Rotulorum
for
the
County
of
Middlesex
,
and
set
forth
the
Letters
Patents
in
haec
verba
.
Then
they
find
that
the
Office
of
Clerk
of
the
Peace
for
this
County
being
void
,
the
Earl
of
Clare
by
writing
under
his
Hand
and
Seal
,
dated
19
July
Anno
primo
,
did
nominate
,
appoint
,
and
constitute
the
Plaintiff
,
Mr.
Harcourt
,
to
be
Clerk
of
the
Peace
for
Middlesex
,
for
so
long
time
only
,
as
he
should
well
demean
himself
therein
,
and
the
Instrument
was
found
in
haec
verba
.
Then
they
find
him
to
be
a
Person
resident
in
the
County
,
capable
and
sufficient
to
have
and
execute
the
Office
;
that
he
took
upon
him
the
execution
of
the
said
Office
;
and
before
he
did
so
,
he
at
the
Quarter
Sessions
for
the
said
County
,
in
open
Sessions
,
took
the
Oath
required
by
the
late
Act
of
this
King
,
and
the
Oath
of
Clerk
of
the
Peace
,
and
did
do
and
perform
all
things
necessary
to
make
him
a
compleat
Officer
;
and
that
during
all
the
time
he
did
execute
the
sald
Office
he
demeaned
himself
well
.
Then
't
is
found
,
That
on
the
fifth
of
February
,
Anno
tertio
,
the
said
Earl
of
Clare
was
in
due
manner
removed
from
being
Custos
,
and
William
Earl
of
Bedford
,
by
Letters
Patents
dated
the
sixth
of
February
,
was
made
Custos
according
to
the
37
Hen.
8.
and
those
Letters
Patents
are
also
found
in
haec
verba
.
Then
they
find
an
Appointment
in
Writing
,
dated
the
fifteenth
of
February
by
the
said
Earl
,
of
the
said
Fox
to
be
Clerk
of
the
Peace
for
the
said
County
,
to
hold
the
said
Office
for
and
during
the
time
the
Earl
should
enjoy
and
exercise
the
said
Office
of
Custos
,
so
as
he
well
demean
himself
therein
.
They
likewise
find
Fox
to
be
a
Person
capable
,
&c.
and
that
he
took
the
Oath
,
and
did
the
other
things
requisite
to
qualifie
himself
for
the
said
Office
;
that
he
did
thereupon
enter
on
the
Execution
of
the
said
Office
;
and
during
the
time
that
he
executed
it
,
he
well
demeaned
himself
therein
,
and
did
take
the
Fees
belonging
to
the
said
Office
,
which
they
found
to
be
to
the
value
of
five
shillings
,
Sed
utrum
,
&c.
Et
si
,
&c.
Et
si
,
&c.
Upon
this
Judgment
was
given
for
the
Plaintiff
below
.
And
it
was
now
argued
for
the
Plaintiff
in
the
Writ
of
Error
,
That
this
Judgment
ought
to
be
Reversed
.
And
first
it
was
said
,
that
whatsoever
the
Common
Law
was
,
as
to
ancient
Offices
,
could
be
no
Rule
in
this
Matter
:
Many
and
most
of
those
were
for
Life
;
but
my
Lord
Coke
says
,
That
the
Office
of
Chancellor
of
England
could
not
be
granted
to
any
one
for
Life
,
because
it
was
never
so
granted
;
the
like
of
Treasurer
:
So
that
Custom
,
and
nothing
else
,
can
govern
in
those
Offices
.
But
here
can
be
no
pretence
of
its
being
a
Common
Law
Office
;
for
the
Common
Law
knew
no
such
thing
as
Justics
of
the
Peace
,
to
whom
,
they
say
,
he
is
a
Clerk
:
That
the
first
Statute
which
makes
Justices
,
hath
no
mention
of
Clerk
;
but
't
was
meerly
an
Incident
;
some
Person
of
necessity
was
to
officiate
in
that
kind
:
And
where
he
is
called
the
Justices
Clerk
,
it
can
only
be
,
that
he
was
one
appointed
by
them
to
make
and
write
their
Records
for
them
;
and
't
is
probable
,
that
in
ancient
time
,
he
that
was
their
Clerk
was
Custos
Rotulorum
,
and
intrusted
with
the
keeping
of
the
Records
;
then
it
coming
to
be
an
honorary
thing
to
be
Custos
,
he
that
was
the
most
eminent
for
Quality
amongst
them
,
was
appointed
to
that
Trust
,
and
then
he
appointed
his
Clerk
under
him
:
For
there
's
no
ancient
Statute
or
Law
,
that
empowered
the
Chancellor
to
make
a
Custos
;
but
he
making
out
the
Commission
of
the
Peace
,
might
very
well
name
one
of
them
to
be
Keeper
of
the
Records
,
and
to
have
the
first
place
amongst
them
.
And
such
Person
might
very
well
appoint
his
Deputy
or
Servant
,
who
in
time
came
to
be
Clerk
of
the
Peace
.
We
have
no
certain
,
but
this
is
the
most
probable
,
Account
of
the
thing
.
Then
the
Statute
of
37
Hen.
8.
recites
,
That
the
Chancellor
had
much
perverted
the
Institution
,
by
assuming
to
make
Custos's
for
Life
,
and
so
the
Clerks
of
the
Peace
were
for
Life
likewise
.
The
end
of
that
Act
was
not
only
to
remove
ignorant
Persons
;
for
the
Common
Law
it self
would
turn
any
such
out
of
Office
,
if
he
be
not
able
to
perform
the
Duty
of
it
;
but
the
Grants
for
Life
,
were
the
great
Grievance
;
and
therefore
to
remedy
that
Mischief
the
Custos
must
be
appointed
by
Bill
signed
with
the
King
's
own
hand
,
and
at
his
pleasure
removeable
,
and
the
Clerk
of
the
Peace
to
be
appointed
by
the
Custos
,
and
to
continue
only
during
the
time
of
the
others
continuing
to
be
Custos
.
This
(
tho'
not
in
the
Negative
)
doth
amount
to
it
,
viz.
that
he
shall
continue
no
longer
;
especially
when
the
Act
recites
the
Mischief
to
be
a
Continuance
during
Life
:
It
implies
that
the
Clerkship
of
the
Peace
should
be
never
granted
,
for
a
longer
Interest
,
than
the
Custos
had
in
his
Office
.
The
3
and
4
Edw.
6.
doth
indeed
repeal
part
of
the
37
Hen.
8.
not
by
express
words
,
but
by
a
very
strong
Implication
,
by
giving
the
Chancellor
a
power
to
nominate
the
Custos
:
But
the
Office
of
Clerk
of
the
Peace
is
not
toucht
by
that
of
Edw.
6.
and
continues
as
settled
by
37
H.
8.
which
is
during
the
continuance
of
the
Custos
.
Then
't
is
the
new
Statute
,
which
gives
the
occasion
of
the
present
Dispute
;
and
there
's
nothing
in
this
Act
,
which
can
make
such
an
Alteration
in
the
Law
,
as
was
below
contended
for
:
The
words
,
So
long
only
as
he
shall
well
demean
himself
,
are
not
enlarging
of
his
Estate
,
but
Restrictive
:
and
whensover
't
is
considered
how
to
make
a
Grant
for
Life
to
be
good
,
you
must
consider
the
power
and
capacity
of
the
Grantor
,
and
how
the
thing
is
capable
of
being
so
granted
;
as
in
Case
of
Tenant
in
Tail
or
Fee
,
and
each
make
a
Lease
for
Life
;
in
the
latter
Case
,
't
is
for
the
Life
of
the
Lessee
;
and
in
the
former
,
for
the
Life
of
the
Tenant
in
Tail
,
because
of
the
different
Capacities
of
the
Grantors
:
and
so
the
thing
it self
is
considerable
;
here
's
an
express
Statute
,
that
saith
it
shall
be
only
during
the
continuance
of
the
Custos
;
now
that
Provision
is
to
be
pursued
:
'T
is
said
,
that
a
Grant
quam
diu
se
bene
gesserit
,
is
for
Life
;
but
the
words
themselves
do
not
import
any
such
thing
;
't
is
indeed
a
restrictive
Condition
which
the
Law
imposes
upon
all
Offices
;
for
Misbehaviour
in
any
Office
,
if
in
Fee
,
is
a
Forfeiture
;
but
the
chiefest
Consideration
is
,
if
it
be
an
Office
that
is
capable
of
being
granted
for
life
;
if
it
be
so
,
these
words
may
amount
to
a
Grant
for
Life
,
as
expounded
by
usage
and
the
nature
or
capacity
of
the
Office
it self
:
but
otherwise
,
if
the
Office
be
not
grantable
for
Life
,
such
words
will
not
give
an
Estate
for
Life
:
These
words
seem
only
to
be
an
Expression
of
what
the
Law
always
implieth
,
tho'
not
particularly
expressed
.
If
it
operate
any
thing
,
it
seems
only
to
have
reference
to
the
power
of
the
Grantor
,
as
a
Restirction
on
him
,
and
not
as
an
Enlargement
of
the
Estate
of
the
Grantee
,
especially
where
by
a
Law
in
being
there
's
an
incapacity
upon
the
very
Office
not
to
be
granted
for
life
.
Then
it
was
urged
that
the
Statute
of
37
H.
8.
was
not
repealed
:
the
3
and
4
Edw.
6.
doth
not
alter
this
Matter
at
all
;
and
where
it
did
make
any
Alteration
,
the
same
is
expresly
repealed
by
this
last
Act
in
question
.
It
is
a
settled
Rule
,
that
if
there
be
two
Statutes
,
and
both
consistent
and
not
contradictory
,
the
latter
can
never
be
said
to
repeal
the
former
;
and
so
is
Dr.
Foster's
Case
11
Rep.
5
,
6.
so
it
is
in
Wills
,
Hodgkinson
and
Wood
,
Cro.
Car.
23.
This
last
Act
of
Will
.
et
Mar.
is
consistent
with
the
37
H●n.
8.
the
one
says
,
He
shall
continue
during
the
time
that
the
Custos
doth
remain
such
,
so
as
he
demean
himself
well
:
the
other
says
,
He
shall
enjoy
his
place
,
so
song
only
as
he
demeans
himself
well
in
it
.
Now
take
the
Office
to
be
by
the
37
Hen.
8.
only
gran●able
to
hold
during
the
continuance
of
the
Custos
,
then
suppose
in
the
same
Act
,
it
should
be
said
to
hold
so
long
only
as
he
demean
himself
well
;
where
is
the
inconsistency
or
contradiction
?
And
if
none
,
then
this
last
Act
doth
not
Repeal
the
former
as
to
this
Matter
.
And
Mr.
Fox's
Grant
is
pursuant
to
the
Statute
of
Hen.
8.
and
Mr.
Harcourt's
hath
no
relation
to
it
.
Then
't
was
argued
,
That
't
was
unreasonable
that
a
Custos
should
have
an
Officer
under
him
of
anothers
choice
,
when
himself
is
responsible
for
the
Records
which
such
Officer
is
concerned
with
.
The
primary
Intent
of
this
last
Act
was
only
to
settle
the
Doubts
about
the
Keepers
of
the
Great
Seal
,
not
to
alter
the
Estate
of
the
Office
of
Clerk
of
the
Peace
.
The
Offices
of
the
Judges
in
Westminster-hall
determine
with
the
King's
Life
who
grants
them
,
tho
'
they
are
granted
to
hold
during
good
behaviour
.
In
this
Act
,
the
reason
of
using
these
words
,
was
for
Caution
,
to
advertise
them
that
Misbehaviour
should
forfeit
their
Places
.
If
an
Alteration
of
the
Law
had
been
intended
,
they
would
have
said
,
for
Life
,
so
as
he
demean
himself
well
,
especially
when
(
as
was
said
before
)
he
was
removable
for
Misbehaviour
by
the
former
Laws
in
being
.
Wherefore
upon
the
whole
Matter
,
it
was
prayed
that
the
Judgment
might
be
reversed
.
On
the
other
side
it
was
argued
with
the
Judgment
,
That
't
is
clear
and
apparent
that
this
Act
of
W.
&
M.
was
made
not
only
to
satisfie
Doubts
,
and
prevent
Questions
about
the
Office
for
the
Custody
of
the
Great
Seal
,
but
to
settle
the
manner
of
naming
the
Custos
and
Clerk
of
the
Peace
;
and
that
't
is
in
part
introductive
of
a
new
Law
;
and
in
part
a
reviver
of
the
old
:
But
the
general
end
was
,
that
that
Office
of
Clerk
should
be
filled
and
executed
by
a
learned
,
able
,
honest
Person
,
because
it
concerns
the
Administration
of
Justice
.
He
is
the
King's
Attorney
in
many
respects
;
he
not
only
writes
the
sense
of
the
Justices
in
their
Orders
,
but
draws
Indictments
,
and
upon
Traverses
,
he
joyns
Issue
,
as
one
qui
pro
Domino
Rege
in
ea
parte
sequitur
,
and
prays
Judgment
for
the
King
in
many
Cases
;
joyns
in
Demurrer
,
when
occasion
requires
,
and
is
in
the
Sessions
the
same
as
the
Clerk
of
the
Crown
is
in
the
King
's
Bench.
Now
to
accomplish
this
end
of
having
a
Person
well
qualified
,
and
to
encourage
and
oblige
him
to
his
good
Behaviour
,
it
requires
a
Residence
in
the
County
;
it
enjoyns
that
the
Person
named
be
able
;
it
subjects
him
to
the
Jurisdiction
of
the
Justices
,
who
have
a
daily
observance
of
his
demeanour
;
it
gives
them
a
power
to
remove
him
upon
a
just
Complaint
,
which
they
could
not
before
;
it
frees
him
from
the
usual
Temptation
to
Fraud
and
Corruption
,
by
introducing
him
gratis
&
sine
pretio
;
and
to
provoke
his
Care
and
Diligence
;
it
gives
him
a
more
durable
Estate
in
his
Office
,
then
he
had
before
,
when
he
bought
it
,
viz.
Freehold
,
an
Estate
for
his
Life
:
That
it
should
be
so
,
is
convenient
;
because
then
he
will
be
encouraged
to
endeavour
the
increase
of
his
Knowledge
in
that
Employment
,
which
he
may
enjoy
during
Life
;
whereas
precarious
dependent
Interests
in
Places
tempt
Men
to
the
contrary
.
That
this
is
an
Estate
for
Life
,
appears
from
the
words
of
the
Act
;
they
do
direct
how
long
he
shall
enjoy
his
Office
;
so
long
only
as
he
shall
behave
himself
well
:
If
the
word
only
had
been
omitted
,
there
could
be
no
colour
for
a
Doubt
;
By
1
Inst.
42.
'T
is
an
Estate
for
Life
,
determinable
upon
Misbehaviour
;
for
during
good
Behaviour
is
during
Life
;
't
is
so
long
as
he
doth
behave
himself
well
;
i.e.
If
he
behaves
himself
well
in
it
,
so
long
as
he
lives
,
he
is
to
have
it
so
long
as
he
lives
;
during
Life
,
and
during
good
Demeanour
,
are
therefore
synonymous
Phrases
,
the
same
thing
when
used
with
relation
to
Offices
;
the
Condition
annexed
,
if
observed
,
continues
it
during
Life
,
the
contrary
determines
it
:
This
is
the
Rule
and
Law
in
case
of
Offices
in
general
,
and
must
hold
in
this
,
for
this
is
an
Office
,
2
Hen.
7.1
.
He
is
called
Att'
Domini
Regis
.
'T
is
capable
of
being
enjoyed
for
Life
,
and
consequently
of
being
granted
so
,
especially
when
an
Act
of
Parliament
declares
it
shall
be
so
:
There
's
nothing
in
the
nature
of
the
Employment
that
hinders
it
;
and
there
can
be
no
doubt
,
but
that
a
Statute
may
impower
a
Custos
in
possession
,
who
hath
only
an
Estate
at
will
,
to
name
a
Clerk
to
hold
during
Life
or
good
Behaviour
;
The
Justices
are
at
pleasure
;
Suppose
then
the
Act
had
said
,
That
they
should
name
him
in
this
manner
,
he
must
have
continued
,
tho'
they
had
died
,
or
had
been
removed
;
the
Case
is
the
same
here
;
he
is
as
much
intrusted
with
the
Acts
of
the
Justices
,
as
with
the
Records
belonging
to
the
keeping
of
the
Custos
.
Then
there
's
nothing
in
the
Act
that
savours
of
an
Intention
to
make
him
dependent
on
the
Custos's
Office
.
The
Custos
is
to
name
him
,
but
the
Justices
have
the
controul
over
him
;
he
is
an
Officer
to
the
Sessions
,
and
the
Justices
only
can
remove
him
.
The
Limitation
of
the
Interest
of
the
Custos
in
his
Office
,
and
that
of
the
Clerk
,
are
different
;
and
that
shews
that
the
duration
of
the
one
was
not
to
depend
on
the
other
.
Besides
,
the
Custos
is
to
name
,
not
when
he
shall
be
made
Custos
(
as
it
would
have
been
worded
,
if
the
intention
advanced
on
the
other
side
had
been
true
)
but
whensoever
it
shall
be
void
.
It
doth
not
say
,
Every
new
Custos
shall
,
or
that
every
Custos
shall
name
,
but
generally
when
't
is
void
,
he
shall
,
&c.
Then
as
to
the
Objection
,
That
this
new
Act
is
consistent
with
the
37
Hen.
8.
and
therefore
that
is
still
in
force
?
'T
was
answered
,
That
by
the
former
Act
,
he
was
intirely
placed
under
the
Custos
,
who
had
power
to
displace
him
upon
Miscarriage
;
the
Sessions
then
could
not
do
it
,
tho'
a
Court
,
and
a
Court
of
Record
:
they
might
suspend
him
,
but
could
not
deprive
him
of
his
Office
,
even
for
ill
Demeanour
:
This
was
that
Act.
Now
the
present
Law
abridges
the
power
of
the
Custos
;
he
must
name
a
Resident
,
before
he
might
appoint
any
able
Person
;
the
Person
was
then
removable
by
the
Custos
,
now
only
by
the
Justices
;
Care
is
taken
,
that
nothing
is
to
be
given
for
the
Office
;
and
now
he
may
make
a
Deputy
without
the
approbation
of
the
Custos
.
Here
's
plainly
a
different
Jurisdiction
over
him
,
and
a
different
Estate
vested
in
him
;
this
express
Limitation
of
the
Interest
to
him
is
an
Exclusion
of
the
former
Estate
,
as
dependant
upon
that
of
the
Custos
.
And
besides
,
this
is
a
Substantive
distinct
enacting
Clause
of
it self
,
and
no
ways
relating
to
the
Statute
of
Hen.
8.
Why
was
this
Limitation
penned
differently
from
that
,
unless
to
give
another
sort
of
Interest
.
As
to
the
Cases
of
new
Laws
which
repeal
former
,
't
was
said
,
That
the
Rule
was
certain
,
that
whatsoever
Statute
is
introductive
of
a
new
Law
,
tho'
penned
in
the
affirmative
,
is
a
Repeal
of
the
former
,
as
implying
a
negative
;
i.
e.
the
latter
ought
to
be
observed
,
if
it
concerns
the
same
Matter
.
The
Statute
of
Edw.
6.
controuled
the
Statute
of
Hen.
8.
One
directed
the
Keeper
to
name
,
the
other
the
King
,
and
both
are
in
the
affirmative
;
yet
the
latter
must
be
observed
.
And
if
this
be
a
new
Estate
(
as
it
hath
been
adjudged
below
)
then
the
Party
ought
to
enjoy
it
.
And
for
this
was
cited
1
Sid.
55.
Plowd.
113.
and
other
Books
.
Then
't
was
said
,
That
the
Clerk
of
the
Peace
,
named
by
the
Justices
,
in
default
of
the
Custos
,
would
have
an
Estate
for
Life
;
and
by
the
same
reason
it
ought
to
be
so
here
:
Tho'
the
Custos
be
to
be
named
,
according
to
the
Statute
of
Hen.
8.
yet
he
is
not
to
execute
his
Power
of
Custos
according
to
that
Act
,
but
is
tied
to
a
Resident
;
hath
not
the
Approbation
of
a
Deputy
,
and
cannot
remove
.
By
the
Statute
of
Hen.
8.
the
Clerk
had
but
an
Estate
at
the
will
of
the
King
,
the
Custos
having
no
other
:
This
is
so
long
as
he
doth
well
in
his
Office
;
these
are
different
;
and
when
the
Custos
hath
named
him
,
he
is
in
by
the
Statute
.
If
what
they
on
the
other
side
contend
for
,
had
been
intended
,
there
was
no
need
of
these
words
of
Limitation
at
all
;
and
the
words
,
in
like
manner
as
by
the
former
act
,
had
fulfilled
the
intention
,
if
such
had
been
.
As
to
the
word
only
,
that
would
make
no
Alteration
in
the
Case
of
any
other
Office
.
Suppose
an
Office
granted
to
a
Man
quamdiu
tantum
,
or
solummodo
,
se
bene
gesserit
,
would
that
give
less
then
an
Estate
for
Life
:
The
word
only
was
added
,
not
to
abridge
the
Estate
of
the
Clerk
,
but
rather
to
restrain
the
Power
of
the
Custos
,
that
he
should
have
Authority
only
to
limit
it
during
good
Behaviour
,
and
not
for
a
less
Interest
or
Estate
:
The
Custos
is
confined
,
that
he
shall
not
grant
it
for
Years
,
or
at
Pleasure
.
Besides
,
only
is
but
just
so
long
,
and
no
longer
,
or
so
long
as
;
and
't
is
the
same
thing
with
the
word
,
as
without
it
.
Dummodo
sola
vixerit
,
is
during
all
her
Widowhood
.
Suppose
a
power
to
make
Leases
to
hold
only
for
and
during
the
term
of
21
Years
,
the
same
would
be
good
for
the
whole
Term.
Then
't
is
no
Objection
,
That
the
Estate
of
the
Clerk
is
greater
than
his
is
who
names
him
,
for
that
may
be
by
Custom
,
as
in
the
Offices
in
Westminster-hall
,
Hobart
153.
and
the
Clerks
of
Assize
,
where
usage
fixes
the
Estate
.
And
the
like
in
Case
of
Power
to
make
Leases
upon
Family
Settlements
to
Uses
,
where
Tenant
for
Life
grants
larger
Interests
then
his
own
:
'T
is
true
,
the
Powers
and
Estates
raised
by
them
,
issue
out
of
the
Inheritance
,
but
the
Tenant
for
Life
only
names
them
;
as
the
Custos
doth
here
,
tho'
the
Statute
gives
the
Interest
.
As
to
the
Inconvenience
,
That
dependent
Offices
should
continue
against
the
will
of
their
Superiours
,
that
can
be
no
Objection
,
since
there
are
few
great
Officers
in
the
Realm
,
but
have
many
Substitutes
and
Inferiours
under
them
,
which
were
named
by
their
Predecessors
,
and
are
not
removable
;
almost
every
Bishop
in
England
is
under
these
Circumstances
,
with
respect
to
the
Register
of
his
own
Court
,
who
notes
and
records
his
Acts
,
&c.
This
is
an
Exception
to
all
Grants
for
Lives
;
but
Credit
ought
to
be
given
to
the
Honour
,
Wisdom
,
and
Judgment
of
former
,
as
well
as
present
Officers
,
in
respect
of
such
Nominations
,
'till
some
Misbehaviour
shews
the
Choice
to
have
been
ill
;
and
when
that
appears
,
the
Persons
are
removable
,
and
then
the
Inconvenience
is
likewise
removed
,
Here
the
Jury
have
found
the
Plaintiff
in
the
Action
below
,
to
be
able
and
sufficient
,
and
well
qualified
for
the
Office
,
and
to
have
done
his
Duty
in
the
Office
,
while
he
had
it
.
Wherefore
it
was
prayed
that
the
Judgment
might
be
affirmed
;
and
it
was
affirmed
.
Henry
Lord
Bishop
of
London
,
and
Peter
Birch
D.D.
Plaintiffs
.
versus
Attorney
General
pro
Domino
Rege
&
Regina
.
WRit
of
Error
to
Reverse
a
Judgment
given
in
B.
R.
in
a
Quare
Impedit
.
The
Case
upon
Record
was
thus
:
The
Declaration
sets
forth
the
Act
of
Parliament
,
which
Erects
and
Constitutes
the
Parish
of
St.
James's
within
the
Liberty
of
Westminster
,
out
of
the
Parish
of
St.
Martyns
,
&c.
prout
,
that
by
force
and
virtue
of
that
Act
,
the
said
Parish
was
made
,
and
the
District
therein
named
became
a
Parish
,
and
Dr.
Tennison
Rector
of
the
same
;
that
he
was
afterwards
Rite
et
Canonice
consecratus
Episcopus
Lincoln'
,
and
that
thereby
the
said
Church
became
void
,
and
thereupon
it
belonged
to
the
King
and
Queen
to
present
a
fit
Person
,
ratione
Prerogative
sue
Regie
Corone
sue
Angl'
annex
'
,
and
that
the
Defendants
hindred
,
&c
,
The
Defendants
crave
Oyer
of
the
Writ
,
and
it
is
general
;
Vic'
Com'
Midd'
salut'
precipe
Henric'
Episcopo
Lond'
&
Petro
Birch
Sacre
Theologie
Professor'
quod
juste
et
sine
Dilatione
permittant
nos
prefentare
idoueam
personam
ad
,
&c.
que
vacat
et
ad
nostram
spectat
d●mationem
,
Et
unde
pred'
Episcopus
et
Petrus
nos
injuste
,
&c.
And
then
they
pray
Judgment
of
the
Writ
and
Declaration
,
because
that
between
the
Writ
and
Declaration
,
there
is
a
material
variance
i●
hoc
,
viz.
quod
ubi
per
Breve
pred'
,
pred'
Dom'
Rex
et
Regine
●●●itulant
se
ad
Donationem
pred'
,
&c.
pleno
Jure
,
tamen
per
Narr'
pred'
iidem
Dominus
Rex
et
Domina
Regina
intitulant
se
ad
,
&c.
Sec
●●●tione
Prerogative
sue
Regie
Corone
sue
Anglie
annex'
unde
pro
variatione
pred'
inter
Bre●e
et
Narr'
pred'
,
they
pray
Judgment
of
the
Writ
and
Declaration
aforesaid
,
and
that
the
said
Writ
may
be
quash'd
,
&c.
The
Attorney
General
Demurs
,
and
the
Defendants
Joyn
,
and
there
's
Judgment
to
answer
over
.
Then
the
Bishop
Demurs
generally
,
and
Mr.
Attorney
Joyns
,
and
Dr.
Birch
pleads
that
he
is
Incumbent
,
and
then
sets
forth
the
Statute
of
Hen.
8.
concerning
Dispensations
;
and
that
after
Dr.
Tennison
was
elected
Bishop
,
the
Archbishop
granted
to
him
a
Commendam
Retinere
,
with
power
to
take
and
enjoy
the
Profits
to
his
own
use
,
by
the
space
of
seven
Months
.
That
this
Commendam
was
confirmed
under
the
Great
Seal
,
according
to
the
Statute
;
and
the
said
Dr.
Tennison
did
enjoy
the
same
accordingly
,
&c.
Mr.
Attorney
Demurs
,
and
Dr.
Birch
joyns
in
Demurrer
,
and
Judgment
was
given
for
the
King
,
&c.
And
now
it
was
argued
in
the
first
place
,
That
the
Plea
in
Abatement
was
good
;
and
if
so
,
all
that
followed
was
Erroneous
.
And
to
make
that
Plea
good
,
it
was
said
that
there
is
a
variance
between
the
Writ
and
Declaration
;
that
they
are
founded
upon
several
Rights
;
that
upon
arguing
the
Merits
of
the
Cause
,
it
must
be
owned
to
be
so
,
on
the
other
side
That
no
Argument
can
be
urged
to
maintain
the
Declaration
in
general
,
but
the
Jure
Prerogative
,
and
consequently
it
must
be
different
from
the
Title
or
Interest
pleno
Jure
.
They
have
said
below
that
tho'
the
King's
Interest
is
bound
by
Statutes
,
yet
his
Prerogative
is
not
.
This
Distinction
of
the
Rights
must
be
allowed
,
or
else
the
main
Judgment
is
not
justifiable
;
and
that
there
is
such
a
Distinction
,
appears
in
Gaudy
and
the
Archbishop
of
Canterbury's
Case
in
Hob.
302.
by
the
Presentation
there
recited
,
which
was
drawn
by
the
King's
Counsel
;
't
is
ad
nostram
Presentation'
pertinet
,
sive
ex
pleno
Jure
,
sive
ratione
Prerogative
.
By
Bracton
415.
If
the
Writ
be
founded
on
one
Right
,
and
the
Declaration
on
another
,
the
Writ
must
be
abated
,
as
in
Case
of
Executors
and
Corporations
.
In
some
Cases
it
must
be
agreed
,
That
the
Writ
may
be
General
,
and
the
Count
Special
;
but
none
of
those
Cases
will
reach
to
this
,
where
several
Rights
are
pretended
.
'T
is
no
Objection
to
say
,
That
there
is
no
Writ
in
the
Register
for
this
;
for
that
's
rather
an
Argument
against
their
Prerogative
:
Besides
,
this
Prerogative
was
never
allowed
till
Dyer's
time
;
and
in
the
old
Books
't
is
denied
,
where
the
King
was
not
Patron
.
In
the
Register
30.
is
a
Writ
Special
,
quod
permittant
nos
presentare
idoneam
personam
ad
Ecclesiam
de
,
&c.
que
vacat
et
ad
nostram
spectat
Donationem
ratione
Archiepiscopatus
Cant'
nuper
vacantis
in
manu
existentis
.
And
another
Sine
titulo
ut
de
jure
,
and
that
is
General
,
ad
nostram
spectat
Donationem
.
Another
Writ
is
there
Ratione
custodie
terre
et
heredis
upon
a
Tenure
in
capite
.
And
another
,
Ratione
foris
facture
unius
,
et
ratione
custodie
terre
et
heredis
alterius
per
servitium
.
Another
Writ
pro
Domino
Rege
et
aliis
conjunctim
Register
32.
is
another
such
by
reason
of
the
Vacancy
of
the
Archbishoprick
.
'T
is
not
an
Answer
,
That
the
Writ
of
Waste
is
General
,
and
the
Count
Special
,
because
that
is
not
en
auter
droit
.
Then
it
was
said
that
it
is
true
,
That
where
another
Writ
cannot
be
had
,
a
General
Writ
and
Special
Count
are
allowable
;
but
here
a
Special
Writ
might
have
been
sued
.
And
there
were
cited
the
1
Inst.
26
,
53
,
54
,
235
,
344
,
3
Cro.
185
,
829.
And
as
to
the
Queen
and
the
Archbishop
of
York's
Case
3
Cro.
340.
that
doth
not
come
up
to
this
Case
;
for
tho'
the
Writ
were
General
,
and
the
Count
in
Right
of
the
Dutchy
of
Lancaster
,
yet
both
were
as
Patron
pleno
jure
;
and
the
Count
did
only
shew
,
how
the
Plaintiff
came
to
be
Patron
;
but
here
they
were
several
Rights
,
as
dictinct
,
as
a
Claim
by
a
Man
singly
,
and
a
Claim
as
Executor
,
or
in
jure
Vxoris
.
In
Answer
to
this
were
cited
the
Presidents
in
Mich.
31
Hen.
6.
Rot.
65.
Pasch.
9
Eliz.
Rot.
1408.
or
1410.
Hill.
13
Car.
1.
Rot.
486.
Trin.
31
Car.
2.
Dominus
Rex
versus
Episcop'
de
Worcester
,
Writ
General
and
Count
Special
,
Rastal
528
,
530.
Then
it
was
argued
,
upon
the
Merits
of
the
Cause
,
as
it
was
,
appearing
upon
the
Declaration
and
Plea
and
Demurrer
:
and
therein
three
Queries
were
made
,
as
had
been
by
the
King's
Counsel
below
.
1.
If
the
King
hath
any
Prerogative
to
present
upon
an
Avoidance
by
Promotion
,
where
neither
himself
,
nor
the
Bishop
,
was
Patron
,
but
another
Subject
.
2.
If
this
Commendam
Retinere
,
and
to
take
the
Profits
to
his
own
use
,
was
not
a
Service
of
this
Prerogative
turn
.
3.
Supposing
that
there
be
such
a
Prerogative
,
and
that
the
Commendam
makes
no
Alteration
in
the
Case
,
then
if
this
Vacancy
of
this
Church
be
subject
to
this
Prerogative
.
As
to
the
first
it
was
argued
,
That
where
an
Incumbent
is
promoted
to
the
Order
and
Degree
of
a
Bishop
,
his
Living
or
Benefice
becomes
void
;
and
that
where
a
Bishop
is
Patron
,
and
the
Advowson
and
Bishoprick
are
become
void
at
a
time
,
there
the
King
shall
present
;
because
while
the
Temporalties
are
in
his
hands
,
he
is
lawful
Patron
for
that
time
,
and
consequently
had
a
Right
to
present
,
but
not
by
virtue
of
any
Special
Prerogative
;
but
only
as
a
Temporary
qualified
Patron
,
like
a
Dominus
pro
Tempore
of
a
Mannor
,
may
do
Acts
of
Necessity
which
regularly
belong
to
the
very
true
Lord
himself
;
and
this
perhaps
gave
the
Colour
for
this
pretended
Prerogative
:
and
in
truth
it
answers
every
thing
,
that
can
be
suggested
from
any
ancient
Authority
,
whether
President
,
Book
Case
,
or
Opinion
.
It
is
otherwise
where
a
Subject
is
Patron
,
and
the
King
hath
no
Possession
of
,
or
a
Right
to
the
Patronage
at
that
time
;
In
such
case
he
cannot
present
,
and
there
is
no
Prerogative
given
by
our
Law
,
for
to
warrant
such
a
Right
to
that
Presentation
.
All
Prerogatives
are
founded
upon
some
reason
of
Benefit
to
the
People
,
either
in
respect
of
the
Government
in
general
,
or
else
of
some
particular
Subjects
;
but
this
hath
neither
:
And
in
3
Cro.
527.
't
is
agreed
,
that
there
is
no
Reason
for
such
a
Prerogative
,
but
't
is
added
,
and
the
Addition
is
somewhat
strange
,
that
many
Prerogatives
have
no
reason
in
them
,
or
for
them
:
and
that
't
is
unmannerly
to
Enquire
or
Doubt
,
if
they
are
reasonable
;
whereas
it
might
be
thought
that
unreasonableness
in
the
Matter
contended
for
,
had
been
an
Argument
against
any
thing
but
an
Act
of
Parliament
.
In
Dyer
228.
Sir
Henry
Sidney's
Case
versus
the
Bishop
of
Glocester
,
by
Dyer
't
was
agreed
,
That
the
Queen
had
no
such
Prerogative
;
and
he
adds
,
quod
sic
alij
Socii
mei
sentiebant
;
so
that
't
was
not
his
single
Opinion
against
it
,
but
the
whole
Court
of
C.
B.
Then
't
was
said
that
the
ancient
Law
knew
nothing
of
his
Prerogative
;
all
the
Records
,
Law
Books
,
and
even
Histories
have
been
searched
for
the
Maintenance
of
it
,
and
no
footsteps
can
be
found
for
it
:
No
Bracton
or
Fleta
,
no
Dr.
and
Student
,
or
Stamf.
that
treats
of
the
Prerogative
,
hath
any
thing
of
it
.
Now
all
Prerogatives
are
and
must
be
time
out
of
mind
,
or
not
at
all
:
And
then
,
if
this
be
not
so
,
it
must
be
an
Usurpation
,
and
being
not
time
out
of
mind
,
it
cannot
be
a
Prerogative
,
because
not
part
of
the
Common
Law
.
In
the
great
Case
which
they
so
much
insist
on
,
of
Woodley
in
2
Cro.
691.
Justice
Hutton
,
who
was
an
ingenious
Man
,
a
good
Lawyer
,
and
a
true
English
Judge
,
that
argued
against
Ship-money
,
he
expresly
denies
,
that
there
was
any
such
Prerogative
;
that
the
King
had
no
Title
to
present
,
but
where
himself
is
Patron
;
and
that
there
was
no
such
Presentment
,
till
of
late
days
;
nor
any
Book
of
Law
to
warrant
it
;
but
that
Case
which
is
in
Bro.
Abr.
Presentment
al'
Esglise
61.
Then
't
was
urged
,
That
a
few
years
Practise
can
no
more
make
a
Prerogative
,
then
it
can
Repeal
an
Act
of
Parliament
.
'T
is
true
,
that
in
the
Report
of
that
Case
,
Crook
seems
to
admit
,
that
Winch
was
of
Opinion
for
the
Prerogative
,
and
only
Hutton
against
it
;
for
he
makes
Winch
to
say
,
That
the
King
has
an
Absolute
Title
by
his
Prerogative
,
as
well
in
the
Case
of
Common
Persons
Patronage
,
as
where
himself
is
so
:
But
as
't
is
in
Winches
Reports
96.
where
the
Case
is
reported
again
,
there
they
are
both
of
Opinion
against
it
;
and
Winch
ridiculed
the
Opinion
of
Bro.
Presentment
61.
as
the
saying
of
the
Bishop
of
Ely
,
who
was
then
Chancellor
,
and
might
have
right
to
present
to
it
by
force
of
his
Place
,
if
the
King
had
such
a
Prerogative
:
And
indeed
Bro.
himself
makes
a
Remark
upon
it
,
as
a
thing
never
heard
of
before
by
a
quod
nota
.
The
King
hath
presented
to
Livings
of
other
Mens
Patronages
,
but
that
was
not
by
force
of
this
Prerogative
,
but
on
other
grounds
;
as
40
Ed.
3.40
.
the
King
presented
to
a
Prebendary
,
when
the
Prebend
was
made
a
Bishop
:
And
the
reason
of
that
Case
makes
for
the
Plaintiff
in
Error
,
i.e.
because
the
Temporalties
of
the
Bishop
,
who
was
Patron
of
that
Prebendary
,
was
then
in
the
King's
Hands
,
and
then
the
King
was
Patron
so
long
,
and
he
did
present
as
such
:
So
is
the
41
Edw.
3.5
.
the
same
as
Patron
having
the
Temporalties
in
his
hand
:
So
is
44
Edw.
3.24
.
upon
another
reason
;
a
Parson
is
made
a
Bishop
,
and
the
King
presented
not
Jure
Prerogative
,
but
because
that
the
Patron
was
the
King's
Tenant
in
Capite
,
and
the
Heir
was
in
Ward
to
the
King
,
and
so
he
had
Jus
Patronatus
in
him
:
The
King
hath
it
,
where
he
has
the
Temporalties
;
so
is
Fitzh
.
Grand
Abridgment
Title
Quare
Impedit
pl.
35.
the
King
claimed
Title
to
present
to
the
Provostry
of
Wells
in
the
Gift
of
the
Bishop
,
void
upon
the
Provost
,
being
made
Dean
,
because
the
Temporalties
of
the
Bishop
were
in
the
King's
hands
at
that
time
The
11
Hen.
4.37
,
59
,
and
76.
tho'
cited
on
the
other
side
below
,
is
a
full
Authority
;
't
is
a
noted
Case
,
the
ancientest
Case
in
our
Law
concerning
Commendams
:
The
Case
in
short
is
thus
;
The
King
brings
a
Quare
Impedit
,
and
makes
his
Title
by
the
Creation
of
the
Incumbent
to
be
a
Bishop
.
There
was
some
Debate
on
the
Declaration
;
but
the
Defendants
plead
,
that
the
King
granted
the
Temporalties
to
the
new
Bishop
,
before
the
Living
became
vacant
.
Then
the
King
waives
that
Declaration
,
and
betakes
himself
to
another
Title
,
and
Declares
on
the
Statute
of
Provisors
,
because
the
Pope
had
usurped
a
Power
which
that
Statute
denied
him
;
and
there
's
no
Judgment
in
the
Case
upon
the
first
point
;
but
't
is
most
clear
,
that
the
King's
Counsel
in
that
Case
were
of
Opinion
against
this
Prerogative
,
because
they
did
not
stand
to
that
Title
,
but
amended
their
Declaration
,
and
took
to
another
.
This
Point
was
directly
to
have
been
judged
in
the
Case
,
if
they
had
thought
fit
to
abide
by
it
:
So
that
't
is
plain
that
they
took
the
Plea
to
be
good
,
if
the
Temporalties
were
in
the
King's
hands
,
then
the
King
was
to
present
;
if
not
,
that
he
had
no
such
Prerogative
.
And
this
is
a
great
Authority
,
that
the
King
had
no
such
Prerogative
,
because
he
waives
that
Title
and
goes
to
another
.
5
Edw.
2.
Maynard
148.
Hugh
de
Courtney
brings
a
Quare
Impedit
against
Thomas
de
Hutwet
for
the
Church
of
Bingham
,
and
sets
forth
that
Isabel
de
Force
,
Countess
of
Aumerle
,
presented
such
a
one
,
upon
the
Livings
becoming
void
by
Cession
,
viz.
by
the
Incumbents
being
made
a
Bishop
;
but
never
a
word
of
the
King's
Title
in
all
the
Case
,
or
any
such
Prerogative
as
is
now
contended
for
.
And
in
Owen's
Rep.
144.
Walmesly
cites
a
President
which
he
had
seen
in
Edward
the
Second's
time
,
adjudged
that
the
King
had
no
such
Prerogative
;
and
all
that
was
said
for
it
was
eight
or
nine
Presidents
in
Tradition
or
History
of
a
Patron
,
being
complemented
out
of
his
Right
;
but
not
one
Law-Book
for
it
.
Coke
4
Inst.
356
,
357.
who
wrote
and
published
much
,
he
never
mentions
this
Prerogative
,
but
says
that
the
Law
is
otherwise
,
for
upon
his
Observation
on
a
Record
of
24
Edw.
3.
Rot.
25.
coram
Rege
,
Cornub
'
.
Admittitur
Episcopus
Exon'
pro
fine
200
merc'
pro
contemptu
in
non
admittendo
presentatum
Regis
ad
Ecclesiam
de
Southwel
;
pro
quo
contempt'
omnia
temporalia
Seisita
fuerunt
in
manus
Regis
,
&
tunc
temporis
ante
finem
fact'
vacavit
Archidiaconat
'
Cornubiae
ratione
quod
Incumbens
Electus
fuit
in
Archiepiscopun●
Dublin'
in
Hibernia
,
(
Temporalibus
Episcopi
Exon'
ad
tunc
in
manibus
Regis
existent
)
per
quod
Dominus
Rex
recuperavit
versus
Episcopum
dict'
Archidiaconat'
.
Upon
this
Record
he
makes
two
Conclusions
;
1.
Tho'
Ireland
be
a
distinct
Kingdom
,
yet
't
is
governed
by
the
same
Law
as
England
in
these
Matters
.
2.
That
when
the
Arch-Deacon
was
by
the
King
preferred
to
an
Archbishoprick
,
he
had
the
Presentation
to
the
Arch-deaconry
in
respect
of
the
Temporalties
of
the
Bishop
of
Exeter
,
Patron
of
the
Arch-deaconry
,
and
not
by
any
Prerogative
.
Here
't
is
observable
,
That
my
Lord
Coke
took
it
that
the
Patronage
,
by
reason
of
the
Temporalties
,
gave
to
the
King
this
Right
,
and
not
the
Prerogative
.
Then
his
next
Paragraph
is
stronger
,
If
a
Bishop
in
England
be
made
a
Cardinal
,
the
Bishoprick
becomes
void
,
and
the
King
shall
name
his
Successor
,
because
the
Bishoprick
is
of
his
Patronage
.
All
which
implies
,
That
if
't
were
not
of
his
Patronage
,
't
would
be
otherwise
,
else
why
is
that
reason
added
.
Obj.
But
then
say
they
,
The
Pope's
Usurpation
prevailed
in
all
those
times
,
and
the
Pope
had
it
when
Provisions
were
in
use
.
But
that
can
be
no
Argument
to
give
the
Crown
a
Prerogative
,
for
the
Pope
was
a
Tyrant
over
the
English
Church
,
and
by
the
same
Reason
the
King
may
claim
to
be
above
all
Laws
,
because
some
Judges
said
as
Hank
did
in
Hen.
4.
quod
Papa
potest
omnia
;
at
that
rate
no
Act
of
Parliament
shall
bind
the
King
,
because
the
Pope
thought
himself
bound
by
no
Law
of
ours
.
Besides
,
There
were
several
of
our
English
Monarchs
and
English
Parliaments
,
that
boldly
withstood
these
Usurpations
;
and
there
were
divers
Intervals
of
Liberty
and
Freedom
from
that
Romish
Yoke
,
and
we
never
read
of
any
Exercise
of
this
Prerogative
in
those
Intervals
.
'T
is
questioned
in
41
Eliz.
and
in
Owen's
Rep.
't
is
said
that
the
Pope's
practise
was
no
Authority
to
warrant
a
Prerogative
,
for
they
used
to
do
strange
things
,
and
the
Clergy
then
made
his
Will
a
Law
;
and
our
English
Lawyers
have
always
complained
of
it
.
Obj.
There
's
no
ancient
Books
that
mention
Title
by
Lapse
.
But
't
was
answered
,
That
in
Caudries
Case
,
't
is
fetch'd
from
the
Reign
of
Edw.
3.
and
that
is
no
very
late
Reign
,
and
Lapse
is
so
ancient
,
as
it
appears
by
the
close
,
Roll
21
Hen.
3.
in
n.
12.
that
the
De●
and
Chapter
pretended
to
it
during
a
Vacancy
of
a
See
upon
an
Advowson
of
the
King
's
own
;
but
it
appears
there
by
a
Writ
to
that
purpose
,
that
no
Lapse
per
tempus
semestre
accrued
on
the
King
;
which
shews
that
't
was
old
Law
for
the
Subjects
,
Pryn
2.481
.
By
a
Writ
8
Hen.
3.
num.
4.
Dorso
,
Prynne
2
Vol.
389.
it
appears
the
Archbishop
of
York
was
to
present
si
ultra
tempus
sex
mensium
vasari
contigerint
,
and
1
Inst.
2
Inst.
and
all
the
Booksare
full
of
it
,
and
Doctor
and
Student
,
which
is
no
new
Book
,
treats
of
it
,
cap.
31.
Besides
,
that
and
this
are
different
Cases
;
there
is
a
necessity
of
such
a
Law
for
the
Service
of
the
Church
;
the
King
is
by
the
Constitution
intrusted
with
the
Supreme
Care
of
his
People
,
both
for
Religion
and
Property
;
and
if
a
Patron
will
not
do
it
in
reasonable
time
,
't
is
reasonable
he
should
lose
it
,
and
the
King
present
.
But
to
make
that
a
similar
Case
,
they
should
shew
that
these
Prerogatives
were
of
equal
duration
;
and
that
there
's
as
much
reason
for
the
one
as
for
the
other
;
but
because
the
King
hath
preferred
the
Patron
's
Friend
,
therefore
the
King
shall
have
it
,
that
cannot
hold
upon
a
toties
quoties
when
the
Friend
is
dead
,
and
three
or
four
more
of
the
King
's
presenting
,
for
by
this
means
the
Patron
may
never
present
to
his
Church
.
2.
The
next
Query
was
,
Whether
this
Commendam
for
above
the
six
Months
,
with
power
to
take
the
Profits
to
his
own
use
,
shall
be
a
fulfilling
of
this
turn
,
or
otherwise
prevent
the
Operation
of
the
Prerogative
on
it
;
by
this
he
was
a
plenary
Incumbent
after
Consecration
,
and
he
had
the
Profits
to
his
own
use
:
He
was
not
meerly
the
Ordinary's
Deputy
to
supply
the
Cure
during
six
Months
,
but
hath
it
in
his
own
right
,
and
this
with
the
King's
concurrence
.
The
Prerogative
could
only
work
upon
an
Avoidance
by
Promotion
,
and
that
is
upon
Consecration
;
this
becomes
void
at
the
expiration
of
therein
limited
.
T
is
to
be
considered
,
That
this
is
none
of
the
old
Prerogatives
of
the
Crown
,
which
in
a
Competition
are
to
be
preferred
before
the
Subject's
Right
,
it
is
a
Prerogative
not
to
be
favourably
interpreted
,
but
stricto
Jure
,
for
't
was
only
taken
up
as
a
Papal
Right
,
and
so
't
is
plain
from
2
Rolls
Abridg.
358
,
359.
As
such
a
Papal
Right
,
it
ought
to
be
interpreted
stricto
Jure
,
even
by
the
Pope's
Law
,
being
against
the
Patron
's
ordinary
Right
,
and
so
't
is
nature
odiose
;
there
might
be
cited
Suares
and
others
to
this
purpose
:
Perhaps
the
Pope's
Right
was
not
so
much
allowed
here
,
as
to
make
it
clear
with
him
in
this
Point
;
for
Dr.
and
Student
,
cap.
36.
&
37.
says
,
that
the
Pope's
Collection
of
Benefices
vacantium
in
Curia
,
was
held
to
be
within
the
Statute
concerning
Provisions
,
viz.
25
Edw.
3.
This
Prerogative
hath
been
construed
stricto
Jure
here
:
1.
In
the
Case
which
the
Lord
Chief
Justice
Vaughan
Reports
,
where
the
Crown
upon
the
promotion
of
an
Incumbent
to
the
Bishoprick
of
Oxford
(
and
who
by
Dispensation
retained
his
Living
till
death
)
would
have
presented
to
the
Living
when
it
fell
vold
,
by
the
Incumbent
the
Bishop's
Death
;
it
was
resolved
that
the
King's
Prerogative
was
not
to
present
to
the
next
Avoidance
after
the
Promotion
,
but
to
the
next
Avoidance
by
the
promotion
which
in
that
Case
was
none
,
for
that
the
Avoidance
was
by
Death
.
2.
In
the
Case
my
Lord
Chief
Justice
Dyer
reports
228.
the
promoted
Incumbent
was
dispensed
with
to
retain
for
a
term
of
years
;
within
which
term
he
resigned
;
and
there
,
upon
the
Avoidance
,
the
Prerogative
was
not
admitted
to
take
place
,
because
the
Avoidance
was
by
the
Resignation
,
and
not
by
the
Promotion
.
Now
if
this
Prerogative
is
to
be
interpreted
stricto
Jure
,
it
will
have
no
place
in
this
Case
,
where
the
Incumbent
promoted
is
dispensed
with
to
retain
for
a
term
of
time
which
is
elapsed
:
For
,
The
King's
Prerogative
will
have
a
very
Natural
Construction
,
by
admitting
his
Title
to
present
to
all
such
Avoidances
,
as
commence
immediately
from
and
by
the
promotion
.
This
is
the
Avoidance
which
the
Law
intends
,
and
which
the
Law
would
always
cause
(
if
not
hindred
to
operate
by
Dispensation
)
and
this
Avoidance
is
that
therefore
,
which
the
Prerogative
must
most
principally
respect
,
and
only
that
,
if
it
be
to
be
strictly
taken
;
insomuch
that
were
it
in
the
sole
power
of
the
Archbishop
to
grant
this
Dispensation
,
it
seems
the
King's
Title
would
clearly
be
set
aside
by
it
:
much
more
therefore
should
it
be
so
,
when
what
the
Law
designs
,
is
prevented
by
the
Act
of
the
King
himself
:
For
tho
'
the
Lord
Vaughan
saith
,
That
the
King's
Concurrence
to
the
Dispensation
is
only
for
formality
;
yet
't
is
plain
that
the
King
may
force
the
Archbishop
to
grant
it
.
Now
this
Interpretation
of
the
Prerogative
seems
to
be
already
made
in
the
Case
cited
upon
a
Resignation
of
the
Incumbent
dispensed
with
,
for
,
(
as
it
is
there
intimated
)
if
the
King's
Title
was
not
supposed
to
be
gone
by
the
defeating
of
the
immediate
Avoidance
,
which
the
Law
intended
,
but
the
King
would
not
permit
.
It
would
be
very
strange
that
it
should
be
eluded
by
the
Resignation
of
the
Incumbent
,
to
which
the
King
was
no
Party
;
for
if
the
King
had
a
Prerogative
to
present
to
this
new
,
this
deferred
,
this
adjourned
Avoidance
,
it
would
be
more
reasonable
to
allow
it
to
be
hastened
,
then
defeated
by
such
a
Resignation
before
the
time
.
This
Prerogative
ought
to
admit
such
a
Restriction
from
the
reason
of
the
thing
,
and
from
the
consideration
of
the
Inconveniencies
which
may
otherwise
follow
.
To
the
Subject
.
A
Patron
might
be
content
to
let
the
King
exchange
a
single
Life
,
and
put
in
a
Clerk
in
the
place
of
one
removed
,
much
rather
then
that
the
Living
should
be
held
on
by
one
in
Commendam
,
that
from
thenceforth
would
be
sure
to
leave
it
,
and
be
absent
for
a
better
Residence
in
a
Palace
;
yet
they
may
,
as
they
have
reason
,
think
it
too
hard
,
that
the
King
should
,
as
it
were
,
let
a
Lease
of
it
first
,
and
afterwards
put
in
his
Clerk
for
Life
;
and
tho'
the
King
doth
commend
here
but
for
a
small
time
,
yet
he
may
for
a
longer
.
He
may
perhaps
,
as
the
Pope
did
often
,
dispence
with
the
Bishop
to
hold
durante
beneplacito
,
and
when
the
Incumbent
is
in
danger
of
Death
,
then
present
another
;
so
as
the
Patron
may
have
his
own
Clerk
not
removed
,
as
was
first
intended
,
but
dispensed
with
,
to
wear
out
his
Life
in
the
Benefice
,
and
yet
after
all
have
another
put
in
.
The
Crown
may
have
Inconvenience
by
the
straining
of
it
further
than
this
,
for
all
strains
weaken
,
if
not
break
the
thing
it self
.
This
Opinion
of
theirs
arises
from
the
Principle
my
Lord
Vaughan
lays
down
,
That
a
Commendam
neither
gives
nor
takes
away
Right
,
but
only
is
a
Dispensation
to
hold
,
and
he
continues
Incumbent
still
,
and
it
prevents
an
Avoidance
;
and
if
so
,
why
should
it
not
also
prevent
the
operation
of
the
Prerogative
too
.
As
to
the
Case
of
Woodley
,
2
Cro.
691.
they
say
't
is
Law
,
to
prove
the
other
Point
for
them
;
If
it
be
Law
for
them
in
that
Point
,
't
is
Law
against
them
in
this
.
That
a
Dispensation
ad
retinend
'
prevents
the
Grantee
of
the
next
Avoidance
:
The
Case
was
thus
;
A
Man
hath
a
Grant
of
the
next
Avoidance
,
the
Incumbent
is
promoted
,
but
with
a
Commendam
Retinere
for
six
years
,
and
dies
,
the
Grantee
shall
not
present
,
because
he
is
to
have
the
next
Avoidance
only
,
and
no
other
:
'T
is
the
words
of
the
Book
,
that
when
the
Incumbent
is
created
a
Bishop
,
and
the
King
presents
,
or
grants
,
that
he
shall
hold
it
in
Commendam
(
which
is
quasi
a
Presentation
)
and
he
is
thereby
full
Incumbent
,
and
may
plead
as
an
Incumbent
;
if
the
Grantee
of
the
next
Avoidance
do
not
then
present
,
he
hath
lost
his
Presentation
;
for
he
ought
to
have
the
next
,
and
he
cannot
have
any
other
.
Now
if
this
be
so
that
a
Commendam
Retinere
hath
so
much
of
a
Grant
in
it
,
and
is
so
equivalent
to
a
Commendam
ad
recipiend
'
,
that
it
will
set
aside
and
frustrate
a
Grant
of
the
next
Avoidance
,
and
be
it self
taken
for
a
presentation
to
the
next
Avoidance
against
the
Grantee
;
by
the
same
reason
it
must
be
taken
so
against
the
King
,
as
a
Presentation
to
an
Avoidance
,
and
consequently
his
turn
is
served
by
it
.
Much
might
be
said
against
those
Commendams
,
as
promotive
of
Pluralities
,
and
tending
to
the
ruine
of
the
Church
,
and
this
out
of
our
own
Law-Books
;
but
it
is
not
material
at
present
;
't
is
however
to
be
observed
,
that
this
is
not
a
Commendatory
for
six
Months
,
during
the
time
that
the
Patron
may
forbear
to
present
;
such
Person
continued
then
,
is
only
commendatorius
under
the
Bishop
to
provide
for
the
Church
,
as
't
is
his
Duty
to
take
care
of
it
during
that
time
.
3.
Admitting
that
the
King
hath
such
a
Prerogative
,
and
that
this
Commendam
,
tho'
it
gives
the
full
perception
of
the
Profits
,
is
not
a
fulfilling
of
the
King's
turn
,
nor
doth
any
way
distinguish
the
Case
,
or
exempt
it
from
the
Prerogative
:
yet
this
is
a
Case
not
within
it
;
and
this
doth
appear
of
Mr.
Attorney's
own
shewing
in
his
Declaration
upon
the
King's
behalf
:
He
hath
set
it
forth
to
be
a
Parish
newly
created
by
Act
of
Parliament
,
a
thing
not
in
esse
before
.
It
appears
by
the
Declaration
what
that
Act
is
;
it
must
be
taken
as
't
is
there
set
forth
.
To
this
Declaration
the
Bishop
hath
demurred
.
Now
if
by
that
Declaration
it
appears
that
the
Bishop
,
and
not
the
King
,
is
rightfully
intituled
to
present
upon
this
Avoidance
,
the
Judgment
will
and
must
be
accordingly
for
the
Defendants
.
Mr.
Attorney
,
by
his
Count
,
doth
agree
an
Avoidance
within
this
Act
of
Parliament
,
by
the
Promotion
of
Dr.
Tennison
;
and
Mr.
Attorney
doth
likewise
admit
and
agree
,
That
the
King
is
not
Patron
of
this
Benefice
called
,
St.
James's
;
he
doth
agree
too
,
That
the
King
hath
no
Right
given
to
have
any
Turn
or
Presentment
by
this
Act
;
for
he
saith
,
't
is
to
be
by
the
Bishop
of
London
and
the
Lord
Jermyn
;
he
doth
also
admit
by
this
Declaration
,
That
Dr.
Tennison
was
never
presented
to
this
Living
,
that
he
came
not
into
it
by
Virtue
of
any
Presentation
from
any
particular
Patron
;
nay
,
That
he
did
not
come
into
it
by
any
sort
of
Presentation
whatever
;
nay
,
he
yet
doth
further
agree
,
That
this
Parish-Church
was
never
presented
to
by
any
Person
at
all
.
But
he
insists
upon
it
,
That
now
it
is
void
,
the
King
hath
a
Right
to
present
to
it
,
by
force
of
his
Prerogative
upon
this
Avoidance
;
tho'
the
Act
saith
,
That
the
Bishop
shall
present
after
the
Decease
of
Dr.
Tennison
,
or
the
next
Avoidance
.
The
Query
is
,
whether
the
King's
Prerogative
can
operate
upon
this
Vacancy
of
this
Benefice
,
thus
filled
,
and
thus
avoided
,
against
the
express
Words
of
an
Act
of
Parliament
.
It
will
be
necessary
to
repeat
the
Words
of
the
Act
;
and
they
are
to
this
Effect
,
That
all
that
Precinct
or
District
of
Ground
,
within
the
Bounds
and
Limits
there
mentioned
,
from
thenceforth
,
should
be
a
Parish
of
it self
,
by
the
Name
of
the
Parish
of
St.
James's
,
within
the
Liberties
of
Westminster
;
and
a
Church
thereupon
built
,
is
dedicated
by
the
Act
,
to
Divine
Service
,
and
that
there
should
be
a
Rector
to
have
the
Care
of
Souls
inhabiting
there
;
and
then
after
a
full
Commendation
of
the
Merits
and
Services
of
Dr.
Tennison
in
that
Place
,
the
now
Reverend
the
Bishop
of
Lincoln
:
It
doth
Enact
and
Ordain
him
to
be
the
first
Rector
of
the
same
;
and
that
the
said
Doctor
and
his
Successors
,
Rectors
of
the
said
Parish
,
should
be
incorporated
,
and
have
a
perpetual
Capacity
and
Succession
by
the
Name
of
the
Rector
of
the
said
Parish
Church
;
and
by
Virtue
of
that
Act
,
should
be
enabled
by
the
Name
aforesaid
,
to
sue
and
be
sued
,
to
plead
and
to
be
impleaded
,
in
all
Courts
and
Places
within
this
Kingdom
,
and
should
have
Capacity
to
hold
and
enjoy
,
purchase
and
acquire
Lands
,
Tenements
,
and
Hereditaments
,
to
him
and
them
,
Rectors
thereof
,
for
ever
,
over
and
above
what
is
given
and
settled
by
that
Act
,
to
any
Value
not
exceeding
200
l.
per
Annum
.
Then
it
Enacts
,
That
the
Patronage
,
Advowson
,
or
Presentation
after
the
Decease
of
the
said
first
Rector
or
Avoidance
thereof
,
shall
or
should
belong
and
appertain
,
and
by
that
Act
,
shall
or
should
be
vested
in
the
said
Bishop
of
London
for
the
time
being
,
and
his
Successors
,
and
in
Thomas
Lord
Jermyn
,
and
his
Heirs
for
ever
.
Then
it
Enacts
,
That
the
first
Rector
,
after
such
Decease
or
Vacancy
,
shall
be
presented
or
collated
by
the
Bishop
of
London
for
the
time
being
;
and
the
next
to
succeed
him
,
shall
be
presented
by
the
Lord
Jermyn
and
his
Heirs
,
and
the
two
next
succeeding
turns
by
the
Bishop
and
his
Successors
,
and
the
next
turn
to
the
Lord
Jermyn
and
his
Heirs
,
and
then
the
like
Succession
of
two
turns
for
one
to
the
Bishop
and
his
Succession
,
and
of
one
turn
to
the
Lord
Jermyn
and
his
Heirs
,
for
ever
after
.
This
is
the
Act.
Now
't
is
to
be
considered
,
That
this
Law
doth
bind
the
King
,
and
would
bind
him
in
point
of
Interest
,
if
he
had
been
Patron
of
St.
Martins
in
Right
of
his
Crown
;
and
if
a
Right
or
Interest
of
the
Crown
shall
be
bound
by
an
Act
of
Parliament
,
a
Prerogative
shall
be
in
no
better
plight
.
It
cannot
be
said
,
That
he
shall
not
be
obliged
by
it
,
because
not
named
;
for
tho'
,
and
where
he
is
not
named
,
he
is
bound
by
Multitudes
of
Statutes
,
according
to
the
5
Rep.
14
and
11
Rep.
68.
He
is
bound
by
all
Acts
generally
speaking
,
which
are
to
prevent
a
Decay
of
Religion
;
and
so
he
is
bound
by
Acts
,
which
are
for
further
Relief
,
or
to
give
a
more
speedy
Remedy
against
Wrong
.
It
is
no
Objection
,
that
this
Law
is
in
the
Affirmative
;
for
that
it
is
introductive
of
a
new
Law
in
the
very
Subject
,
that
is
created
de
novo
.
Then
before
this
Act
the
King
had
no
Right
over
this
;
and
if
he
hath
now
any
over
it
,
he
can
only
have
it
,
how
,
when
,
and
as
the
Act
gives
it
,
not
contrary
to
it
;
then
the
Bishop
was
Patron
of
the
Place
out
of
which
the
Parish
is
created
:
And
the
Bishop
can
claim
no
other
Right
,
than
what
the
Act
gives
him
,
Bro.
tit
.
Remitter
49.
't
is
so
agreed
1
Rep.
48.
and
in
2
Rep.
46.
if
Lands
be
given
in
Fee
to
one
who
was
Tenant
in
Tayle
,
his
Issue
shall
not
be
remitted
,
because
the
latter
Act
takes
away
the
force
of
the
Statute
de
donis
.
Suppose
he
had
been
Enacted
to
be
Patron
of
a
Living
,
to
which
he
had
a
former
Right
,
there
could
be
no
Remitter
,
because
as
to
particulars
the
Act
is
like
a
Judgment
,
and
estops
all
Parties
to
claim
any
thing
otherwise
than
according
to
the
Act
;
and
yet
Remitter
is
a
Title
favoured
in
the
Law
,
then
if
he
have
this
only
by
force
of
this
New
Act
,
and
another
Person
should
present
in
his
turn
so
given
,
't
would
be
an
Injury
,
if
a
Subject
did
it
,
and
consequently
the
King
cannot
do
it
;
for
the
Prerogative
which
this
Act
gives
,
or
which
the
Common
Law
gives
,
is
not
yet
come
to
take
place
.
Tho'
this
be
an
Affirmative
Law
,
yet
according
to
the
Rule
taken
and
agreed
in
Slade's
and
Drake's
Case
,
Hob.
298.
being
introductive
or
creative
of
a
new
thing
,
implies
a
Negative
of
all
that
is
not
in
the
purview
,
and
many
Cases
are
there
put
to
this
purpose
.
Then
also
it
being
particular
and
express
,
it
implies
a
Negative
,
because
this
and
the
other
are
inconsistent
;
But
First
,
'T
is
observable
all
Prescriptions
and
Customs
are
fore-closed
by
a
New
Act
of
Parliament
,
unless
saved
.
Suppose
there
was
an
Act
of
Parliament
in
Force
before
this
,
viz.
That
the
King
should
present
;
yet
another
Statute
Enacting
somewhat
new
and
inconsistent
,
will
carry
a
Negative
;
and
if
so
,
in
Case
of
a
former
Act
,
there
's
almost
as
much
Reason
for
a
Prerogative
:
It
must
be
agreed
,
That
a
Man
may
prescribe
or
alledge
a
Custom
against
an
Act
of
Parliament
,
when
his
Prescription
or
Custom
is
saved
or
preserved
by
that
or
another
Act
;
but
regularly
a
Man
cannot
prescribe
or
alledge
a
Custom
against
any
Act
of
Parliament
,
because
't
is
matter
of
Record
,
and
the
highest
and
greatest
Record
which
we
know
of
in
the
Law
,
1
Inst.
115.
Suppose
Money
were
by
the
Law
payable
annually
,
and
an
Act
comes
and
says
it
shall
be
paid
Quarterly
,
by
even
and
equal
Portions
at
the
four
Feasts
,
for
the
first
Year
,
this
will
certainly
alter
the
Law
:
'T
is
true
,
That
a
consistent
Devife
or
Statute
,
is
no
Repeal
or
Revocation
;
but
if
a
new
Act
gives
a
new
Estate
different
from
the
former
,
this
amounts
to
a
Repeal
,
Fox
and
Harcourt's
Case
.
The
same
Rule
holds
even
in
Case
of
the
King
as
in
the
Archbishop
of
Canterbury's
Case
,
2
Rep.
46.
and
agreed
to
in
Hob.
310.
the
Query
was
,
if
the
Lands
came
to
the
King
by
31
H.
8.
cap.
13.
or
by
the
Stat.
of
Edw.
6.
and
objected
,
That
the
latter
was
in
the
Affirmative
;
yet
held
,
That
it
came
by
the
latter
,
because
tho'
they
were
Affirmative
Words
,
yet
they
were
differently
penn'd
;
and
the
last
being
of
as
high
an
Authority
as
the
first
,
and
providing
by
express
Words
,
That
by
Authority
of
that
Parliament
they
should
be
in
actual
Possession
of
the
King
,
held
that
they
should
be
in
him
by
force
of
that
last
Act
;
and
Reason
will
warrant
these
Differences
,
because
if
otherwise
,
Inconsistencies
and
Contradictions
must
be
allowed
.
Then
this
is
a
new
Law
in
the
whole
;
't
is
a
new
Parish
,
't
is
a
new
Advowson
;
and
in
truth
't
is
no
Advowson
till
the
Avoidance
;
nay
,
by
the
words
of
the
Act
(
if
any
difference
can
be
in
an
instant
,
between
,
at
and
after
,
as
our
Law
in
several
Cases
allows
it
,
as
per
mortem
&
post
mortem
,
Devise
by
Jointenant
,
&c.
)
there
's
no
Patronage
fixed
,
't
is
no
Advowson
until
after
the
Avoidance
;
for
so
are
the
words
;
after
the
Avoidance
,
the
Advowson
,
Patronage
,
and
Presentation
shall
be
vested
,
foret
vestit'
in
Episcopo
Lond'
&
Domino
Jermyn
,
and
till
then
't
is
vested
in
no
Body
;
and
that
which
is
in
no
Body
,
is
not
at
all
;
unless
it
be
,
as
some
times
for
necessity
sake
we
say
,
in
nubibus
,
or
in
abeyance
;
but
to
say
that
an
Advowson
shall
be
in
abeyance
,
before
't
is
created
or
ordained
to
exist
or
be
at
all
,
must
favour
somewhat
of
Absurdity
:
Now
the
King
can
have
no
Prerogative
turn
upon
an
Avoidance
,
by
a
Promotion
,
but
when
the
Patron
's
Clerk
was
promoted
and
preferred
;
and
here
is
no
Patron
till
that
Avoidance
happen
.
They
say
't
is
vested
immediately
,
tho'
to
take
possession
hereafter
,
as
a
Reversion
granted
cum
acciderit
,
according
to
3
Cro.
323.
and
1
Saund.
147.
But
that
's
not
this
Case
;
for
there
is
a
present
Grant
;
here
the
words
are
,
After
the
Avoidance
shall
be
vested
,
and
not
before
;
and
being
a
new
thing
it
may
be
so
;
as
a
Rent-charge
de
novo
may
be
granted
to
take
effect
de
futuro
,
but
cannot
be
so
of
an
old
Rent
.
2.
Dr.
Tennison
comes
not
in
by
the
Patron
's
Presentation
,
but
by
Donation
of
the
Parliament
;
and
there
is
not
any
President
for
a
Prerogative
to
present
to
a
Donative
upon
a
Promotion
:
The
King
cannot
present
to
that
,
which
the
Patron
could
not
have
presented
to
:
and
the
Patron
could
not
present
to
a
Donative
,
quatenus
a
Donative
;
and
for
the
King
to
present
to
a
Donative
,
is
to
injure
the
Patron
;
for
't
is
to
make
that
Presentative
,
which
was
never
intended
by
the
Patron
to
be
so
:
And
yet
in
Case
of
a
Donative
with
Cure
of
Souls
(
as
it
may
be
of
a
Parochial
Church
,
tho'
exempt
from
Ordinary's
Jurisdiction
,
according
to
Yelverton
61.
2
Roll.
Abridg.
341.
)
the
Ordinary
may
compel
the
Patron
to
Collate
some
body
,
as
was
held
in
Case
of
the
Rectory
Parochial
Donative
of
St.
Burian's
in
Cornwall
;
and
the
Tower
of
London
is
with
Cure
of
Souls
,
1
Cro.
330.
2
Roll.
Abridg.
331.
1
Inst.
144.
The
same
will
be
void
by
a
Promotion
of
the
Incumbent
;
for
't
is
not
meerly
the
change
of
Inferiour
into
Superiour
that
makes
the
Avoidance
;
for
then
an
Incumbent
,
made
Bishop
of
another
Diocess
,
or
in
Ireland
,
would
not
avoid
the
Benefice
;
but
't
is
the
Doubleness
of
the
Charge
,
contrary
to
the
Council
of
Lateran
,
which
hath
been
received
here
.
This
is
more
different
from
the
pretended
Notion
and
Reason
of
this
Prerogative
,
then
that
Case
of
a
Common
Donative
;
for
in
Case
of
a
Donative
,
there
's
an
Incumbent
of
the
Patron
's
own
preferring
,
who
is
further
promoted
by
the
King
,
and
still
in
being
,
and
the
same
Patron
claiming
a
Right
to
fill
the
same
:
Here
't
is
an
Incumbency
by
Gift
of
the
King
,
Lords
and
Commons
.
And
then
,
if
it
be
considered
what
this
new
Prerogative
is
,
for
so
it
must
be
termed
,
since
there
's
no
footsteps
for
it
in
the
old
times
,
and
the
Statute
of
Prerogativa
Regis
(
which
enumerates
most
of
them
,
and
is
rather
a
Collection
of
old
Prerogatives
then
a
new
Statute
)
mentions
it
not
;
't
is
a
Prerogative
to
present
upon
the
Promotion
of
the
Patron
's
Presentee
,
or
incumbent
presented
in
his
Right
;
here
is
no
such
thing
;
't
is
as
their
Books
say
,
when
the
Patron
's
Presentee
is
advanced
to
a
greater
Dignity
in
the
Church
;
and
the
pretended
Reason
given
for
it
to
avoid
the
Objection
,
That
no
Prerogative
is
to
be
injurious
,
or
to
import
a
Wrong
done
to
the
Subject
,
is
this
,
That
here
's
no
Injury
to
the
Patron
,
but
a
Kindness
to
his
Friend
,
because
the
Person
which
he
chose
and
preferred
is
bettered
,
and
further
preferred
to
an
higher
Degree
of
Honour
and
State
in
the
Church
;
all
this
fails
here
;
so
that
there
doth
not
seem
to
be
the
same
Colour
,
why
the
King
should
have
it
in
this
Case
.
It
is
a
good
Argument
,
according
to
Mr.
Littleton
,
That
because
no
such
ever
was
before
,
that
therefore
of
right
it
ought
not
to
be
:
And
if
no
Practise
hath
been
to
warrant
it
,
in
Case
of
a
Gift
by
Act
of
Parliament
,
there
's
no
reason
it
should
be
allowed
in
this
Case
;
for
a
Prerogative
never
used
,
can
never
be
with
Propriety
called
a
Prerogative
;
much
less
reason
have
they
for
it
,
if
they
have
no
Practise
or
presidents
to
warrant
their
Claim
in
case
of
any
Donative
.
Prima
facie
the
patron
hath
the
right
;
to
evade
that
right
of
his
Mr.
Attorney
pretends
to
a
Prerogative
;
then
it
being
of
common
right
with
him
,
they
ought
to
demonstrate
that
there
is
such
a
Prerogative
to
controul
that
right
in
this
particular
Case
,
and
the
Arguments
brought
for
it
ought
to
be
clear
,
convincing
,
and
undoubted
:
Now
because
where
a
Patron
's
Presentee
is
preferred
by
being
consecrated
a
Bishop
,
the
King
shall
present
,
that
therefore
where
the
Parliament's
Presentee
is
preferred
,
the
Patron
shall
lose
the
benefit
of
his
Presentation
,
is
a
non
sequitur
,
because
the
Cases
are
not
the
same
;
for
the
supposed
Recompence
or
Consideration
in
the
one
,
holds
not
in
the
other
:
This
is
not
the
Case
of
a
Prerogative
incident
to
the
Crown
,
from
the
Necessity
of
Government
,
nor
is
it
a
Prerogative
which
respects
the
Continuance
or
Improvement
of
the
Revenue
,
so
as
for
the
benefit
of
the
Kingdom
,
an
Extent
or
Enlargement
of
it
beyond
former
Practise
,
may
seem
absolutely
needful
;
and
therefore
the
common
pretences
of
Intendment
and
Presumption
,
are
no
more
on
their
side
then
upon
this
;
nay
,
't
is
rather
otherwise
,
because
that
common
right
is
with
the
Patron
.
It
is
no
Objection
to
say
,
That
there
never
was
such
a
Promotion
or
Avoidance
before
;
whether
there
were
,
or
not
,
is
not
material
;
but
that
rather
turns
upon
them
,
for
that
Evinces
beyond
dispute
,
that
there
never
was
such
a
Prerogative
presentation
in
Fact
as
they
now
contend
for
;
Argument'
à
simili
is
the
weakest
,
but
they
have
no
Case
like
this
;
nay
,
they
have
no
Opinion
in
the
Books
declaring
on
their
side
;
nay
,
the
Book
Definition
of
this
Prerogative
,
as
was
said
before
,
is
only
to
present
to
a
Benefice
,
vacant
by
promotion
,
that
was
antecedently
presentable
;
here
the
whole
Kingdom
is
Patron
,
and
all
that
they
can
pretend
to
,
is
when
a
Man
is
dignified
by
promotion
,
who
came
in
by
Presentation
or
Collation
,
and
not
otherwise
.
It
is
not
at
present
proper
to
argue
when
this
Prerogative
shall
begin
or
commence
upon
this
Church
,
or
if
ever
;
't
will
be
time
enough
to
dispute
that
,
when
another
Occasion
offers
it self
,
when
the
Doctor
,
or
any
of
his
Successors
,
happens
to
be
preferred
to
the
same
state
,
as
his
Predecessor
is
.
It
suffices
to
maintain
that
this
turn
belongs
to
the
Bishop
of
London
.
This
is
not
an
Advowson
created
,
as
others
usually
are
.
First
,
As
was
observed
before
,
no
Advowson
is
fixed
,
or
vested
,
or
created
,
but
in
futuro
,
the
same
Person
is
made
a
Pluralist
by
Act
of
Parliament
,
tho'
the
Act
it self
says
the
Parish
was
too
great
for
one
Cure
.
Then
't
was
observed
,
That
this
is
not
a
Patronage
turn
;
it
must
be
admitted
that
this
Act
vests
the
Fee-simple
of
this
Advowson
in
the
Lord
Jermyn
and
the
Bishop
of
London
,
and
in
their
respective
Heirs
and
Successors
by
turns
,
viz.
to
the
Lord
Jermyn
one
,
and
to
the
Bishop
two
successively
;
and
so
the
Succession
is
enacted
to
be
for
ever
;
now
this
is
not
one
of
those
Patronage
successive
turns
,
but
it
is
a
particular
Presentation
which
is
given
to
the
Bishop
of
London
by
express
Limitation
,
and
the
penning
is
different
.
The
first
,
about
which
the
present
Contest
is
,
is
to
be
by
the
Bishop
of
London
for
the
time
being
;
then
the
successive
Presentations
of
one
and
two
,
are
to
be
,
one
by
the
Lord
and
his
Heirs
,
and
the
two
by
the
Bishop
and
his
Successors
;
so
that
there
is
no
words
in
the
first
that
looks
like
the
Gift
of
an
Estate
,
but
't
is
only
one
first
particular
Presentation
,
given
to
the
Bishop
more
then
ordinary
:
It
is
not
one
of
his
turns
,
which
he
is
to
have
as
Patron
,
by
two
to
one
:
But
first
he
is
to
present
one
,
before
ever
it
comes
into
the
form
and
manner
of
turns
prescribed
by
this
Act
,
in
perpetual
Succession
:
For
if
otherwise
,
the
Patronage
would
be
to
the
Bishop
three
turns
in
four
,
to
one
of
the
Lord
Jermyns
.
As
to
their
Objection
,
That
a
Patronage
newly
created
shall
be
in
the
same
plight
,
and
under
the
same
Rules
and
Circumstances
and
Incumbrances
as
another
;
that
Objection
can
never
take
place
,
before
it
becomes
a
Patronage
,
which
this
was
not
:
And
2.
with
a
stronger
reason
,
it
can
never
take
place
,
till
it
hath
been
presented
unto
:
3.
It
can
never
take
place
,
where
a
particular
Presentation
is
at
first
given
by
express
words
.
The
words
are
,
The
first
Rector
shall
be
Collated
by
the
Bishop
for
the
time
being
,
and
then
the
Succession
;
and
it
is
always
to
be
remembred
that
't
is
an
Act
of
Parliament
.
Now
suppose
the
Act
had
said
that
the
Patronage
,
after
an
Avoidance
,
should
be
vested
in
A.
and
B.
but
that
the
first
Rector
,
upon
that
Avoidance
,
should
be
presented
by
J.
S.
a
third
Person
;
this
could
never
be
reckoned
a
common
ordinary
turn
,
subject
to
the
like
Prerogative
as
others
:
The
Bishop
here
claims
not
this
particular
Presentation
in
right
of
his
Patronage
,
whereby
he
is
to
have
two
turns
to
one
;
but
by
express
Gift
of
the
Parliament
.
Suppose
the
King
had
been
Patron
of
St.
Martyns
in
his
own
right
,
no
Man
would
say
,
that
this
Act
,
thus
creating
of
a
new
Parish
,
a
new
Rectory
,
and
a
new
Patron
,
would
not
have
bound
him
.
Surely
the
King's
Assent
as
Supream
or
General
Patron
,
is
as
much
implied
in
this
Act
,
as
it
would
have
been
,
had
he
been
a
particular
Patron
of
the
Church
of
that
Parish
,
out
of
which
the
new
one
is
taken
:
Here
the
King
himself
gives
the
first
Presentation
to
the
Bishop
of
London
;
for
the
King
and
People
,
all
together
,
the
whole
Kingdom
are
Donors
or
Grantors
of
this
first
Presentation
to
my
Lord
of
London
.
Suppose
such
a
Right
as
this
is
,
were
in
a
Subject
,
and
he
were
able
to
prescribe
for
it
,
he
must
then
have
set
forth
,
that
time
out
of
mind
,
wheresoever
any
incumbent
of
anothers
Presentation
was
preferr'd
by
him
to
another
Living
,
that
he
should
have
the
Presentation
ea
vice
;
this
is
the
most
that
could
be
made
of
it
.
Would
any
Man
say
,
That
this
Case
would
fall
under
that
Prescription
,
or
the
reason
of
it
.
Now
tho'
a
Prerogative
be
part
of
the
Common
Law
,
and
not
like
a
Prescription
;
yet
every
Prerogative
hath
its
Boundaries
and
its
Limits
,
and
a
Reason
for
it
too
;
or
else
't
is
no
Prerogative
,
that
our
Law
allows
of
.
Besides
,
there
's
good
Reason
in
Fact
,
for
this
Provision
of
the
first
Presentation
,
because
the
Act
takes
notice
of
the
Parish
of
St.
Martyns
;
out
of
which
,
this
Parish
is
taken
,
and
the
Bishop
of
London
was
Patron
thereof
,
and
at
first
there
's
the
same
Incumbent
of
both
,
Dr.
Tennison
:
Now
the
Patronage
being
formerly
in
the
Bishop
,
and
in
the
Successive
Patronage
,
created
of
this
new
Church
by
this
Act
,
there
's
one
turn
in
three
given
away
from
him
to
a
third
Person
,
then
this
Presentation
out
of
turn
is
at
first
given
to
the
Bishop
of
London
,
in
Consideration
of
the
third
turn
given
to
the
Lord
Jermyn
afterwards
.
Then
there
's
another
thing
deserving
of
notice
in
this
Case
,
and
that
's
this
;
That
one
and
the
same
Person
being
incumbent
of
both
Parishes
,
the
King
hath
had
the
Effect
of
his
Prerogative
upon
the
promotion
of
this
very
Incumbent
,
by
presenting
to
that
Church
,
into
which
he
came
by
Presentation
and
Induction
,
viz.
St.
Martyns
;
but
here
the
Prerogative
cannot
operate
,
because
he
came
into
this
by
Donation
,
not
of
the
Patron
,
but
of
the
Parliament
;
and
consequently
as
was
said
before
,
of
the
King
himself
.
Besides
,
here
's
no
Salvoe
of
the
King's
Prerogative
,
or
other
Right
;
and
to
what
end
in
all
private
Acts
for
Sale
of
Estates
,
paying
of
Debts
,
docking
of
Settlements
,
and
the
like
;
do
the
King's
Council
take
Care
,
always
to
insert
a
saving
,
if
the
same
be
not
necessary
.
Here
's
a
new
Estate
given
,
and
that
to
a
particular
Person
,
and
in
a
particular
manner
;
and
no
Person
can
claim
a
Right
to
,
in
,
or
over
this
,
but
as
the
Parliament
hath
given
it
;
as
for
instance
,
in
an
Act
where
two
Churches
are
united
,
as
upon
the
Rebuilding
of
the
City
of
London
,
the
first
Presentation
is
ordered
to
be
by
the
Patron
of
the
Living
,
of
the
greatest
Value
in
the
King's
Books
.
The
King
is
Patron
of
the
Living
of
the
lesser
Value
,
as
he
is
of
several
of
them
in
London
,
he
shall
not
have
his
Common
Prerogative
of
the
first
Presentation
,
which
he
hath
in
all
other
Cases
,
where
his
Interest
is
intermixed
with
others
,
as
in
Case
of
Coparceners
;
and
the
youngest
is
in
Ward
,
he
shall
present
first
;
tho'
the
eldest
,
by
the
Common
Law
,
is
to
have
the
first
turn
,
and
the
King
's
Right
is
in
the
Place
of
the
youngest
;
but
yet
in
case
where
that
an
Act
of
Parliament
gives
a
new
Estate
,
and
prescribes
a
Method
,
tho'
in
the
Affirmative
,
the
Method
limited
shall
take
place
against
the
King's
Prerogative
of
being
preferr'd
;
and
the
reason
is
,
because
it
is
a
new
Right
which
the
Act
gave
to
present
to
the
Church
,
to
which
the
Union
was
,
and
consequently
it
must
be
taken
as
't
is
given
:
And
so
was
it
held
by
the
Civilians
at
Doctors
Commons
,
before
the
Chancellour
of
London
,
and
several
assistant
Delegates
,
upon
a
Caveat
there
against
Institution
,
and
on
Advice
of
the
Lawyers
,
the
King
's
Presentee
acquiesced
,
and
never
brought
any
Quare
Impedit
.
The
Argument
now
is
only
,
as
to
this
one
first
Presentation
,
there
's
no
flat
Contradiction
between
the
use
of
the
Prerogative
and
My
being
Patron
for
ever
;
but
't
is
a
Contradiction
,
to
say
,
the
King
and
I
shall
both
have
the
same
Presentation
.
To
say
,
That
he
shall
have
a
Prerogative
here
,
is
to
say
,
That
he
shall
do
a
wrong
to
his
Subject
,
for
the
Bishop
can
have
no
other
than
this
one
Presentation
;
he
can
have
no
other
in
lieu
of
it
,
and
has
no
Advantage
or
Recompence
antecedent
or
subsequent
from
this
Prerogative
.
First-Fruits
and
Tenths
are
not
demandable
from
this
Parish
,
because
no
saving
of
them
in
the
Act
to
the
King
;
upon
passing
the
Act
,
't
is
known
,
That
in
the
Commons
House
the
same
was
press'd
to
be
inserted
,
but
denied
,
and
the
Clause
rejected
;
the
same
Attempt
was
made
in
this
House
,
but
to
no
purpose
.
In
other
Acts
for
the
Erecting
of
new
Parishes
,
there
is
generally
such
a
saving
,
as
for
St.
Ann's
,
and
St.
John's
of
Wapping
,
and
the
Act
for
uniting
of
Parishes
,
upon
Rebuilding
the
City
,
hath
a
Clause
of
saving
to
this
Effect
:
All
which
shews
,
That
such
a
saving
is
necessary
,
tho'
the
First-Fruits
and
Tenths
being
formerly
enjoyed
by
the
Popes
,
might
have
been
pretended
,
by
Construction
of
Law
,
to
be
a
Profit
annexed
to
the
Crown
by
Stat.
of
26
Hen.
8.
cap.
1.
all
Payments
to
the
Pope
having
been
prohibited
by
25
Hen.
8.
cap.
21.
and
all
Profits
and
Commodities
enjoyed
by
the
Popes
thereby
annexed
to
the
Crown
.
Yet
neither
that
Act
,
nor
that
other
in
the
same
Year
(
whereby
the
First-Fruits
and
Tenths
of
all
Ecclesiastical
Livings
that
then
,
or
thereafter
should
belong
from
any
Parsonage
or
Vicarage
were
granted
to
the
Crown
)
were
ever
intended
to
reach
this
Parish
of
St.
James's
,
it
being
a
new
Creation
by
Act
of
Parliament
;
and
because
in
the
Act
no
First-Fruits
or
Tenths
are
given
or
saved
;
and
there
's
as
much
Reason
to
argue
in
that
case
,
for
an
implied
saving
,
as
there
is
for
this
Prerogative
.
Suppose
it
should
be
admitted
,
That
a
presentable
Benefice
created
by
Act
of
Parliament
,
should
be
subject
to
the
same
Rules
as
others
are
;
yet
that
will
not
reach
this
,
because
not
like
other
Benefices
till
once
presented
to
;
't
is
a
peculiar
singular
Case
,
by
2
Roll.
abr.
342.
and
1
Inst.
344.
If
a
Patron
present
to
a
Donative
,
it
becomes
presentative
ever
after
;
which
shews
,
That
't
is
the
Presentation
which
makes
it
presentative
in
its
Nature
,
now
here
't
is
plainly
a
Donative
till
once
presented
to
.
Then
it
was
said
,
That
it
is
not
needful
to
engage
in
the
Dispute
,
whether
this
Prerogative
shall
prevail
against
the
Grantee
of
the
next
Avoidance
,
according
to
Woodley's
Case
,
2
Cro.
695.
or
whether
that
case
be
Law
,
for
that
the
same
is
plainly
distinguishable
from
our
Case
,
for
there
the
Grantee
comes
in
the
place
of
the
Grantor
,
quoad
that
Avoidance
,
and
he
can
have
no
better
or
greater
Right
than
his
Grantor
would
have
had
,
if
no
such
Grant
had
been
made
.
Here
ours
is
a
first
Presentation
,
granted
by
Act
of
Parliament
.
Suppose
the
Donors
of
this
Presentation
to
the
Bishop
,
had
named
a
Person
in
Esse
,
to
have
succeeded
upon
the
Death
or
Avoidance
of
Dr.
Tennison
;
no
Man
will
pretend
that
this
Prerogative
should
have
prevented
him
,
the
reason
given
in
the
Books
cited
for
that
Case
of
the
Grantee
of
the
next
Avoidance
,
is
,
That
the
Patron
could
not
grant
more
or
otherwise
,
than
under
the
Contingency
of
this
Prerogative
.
Surely
they
will
not
say
,
That
the
King
,
Lords
,
and
Commons
,
were
such
feeble
qualified
,
restrained
Donors
;
then
the
Parliament
being
the
Donors
,
the
Prerogative
insisted
upon
,
and
the
express
Gift
to
the
Bishop
,
are
contradictory
and
repugnant
,
and
cannot
both
be
fulfilled
.
It
is
no
Argument
to
say
,
That
if
a
Vacancy
had
been
in
the
See
,
and
the
Temporalties
in
the
King's
hands
,
then
the
King
must
have
presented
and
not
the
Bishop
,
and
that
would
have
contradicted
the
Act
as
much
as
this
;
for
that
had
been
the
same
as
if
the
Bishop
had
presented
himself
,
for
the
King
during
that
time
,
was
in
loco
ordinarij
.
To
say
,
That
the
Bishop
of
London
hath
no
more
right
by
the
Act
of
Parliament
,
then
a
Grantee
of
the
next
Avoidance
hath
by
the
Common
Law
,
this
surely
is
no
very
close
reasoning
,
for
there
is
some
difference
between
the
one
and
the
other
:
Here
the
Act
of
Parliament
(
which
hath
the
King's
Consent
)
gives
a
particular
and
express
Right
,
and
an
Act
of
Parliament
may
(
as
Coke
saith
)
alter
,
change
,
annul
,
abridge
,
diminish
,
qualifie
,
enlarge
or
transferr
any
Common
Law
;
nay
,
it
hath
the
Common
Law
and
the
Prerogative
too
,
under
its
Controul
.
Upon
the
whole
,
it
was
concluded
,
That
by
this
Judgment
,
a
new
Prerogative
is
affirm'd
to
belong
to
the
Crown
,
and
this
is
extended
to
a
turn
after
a
Commendam
,
which
may
be
a
prejudice
to
all
the
Patrons
in
England
;
2.
It
destroys
and
makes
useless
the
plain
and
express
Words
and
Meaning
of
the
Act
of
Parliament
,
which
gives
the
first
Presentation
to
the
Bishop
of
London
,
and
3.
It
confirms
the
old
Non
obstante
Doctrine
of
Commendams
,
which
hath
always
been
acknowledged
to
be
to
the
prejudice
of
the
Church
;
wherefore
it
was
prayed
,
That
the
said
Judgment
might
be
revers'd
.
On
the
other
side
it
was
argued
,
That
this
Judgment
ought
to
be
affirmed
;
for
that
,
as
to
the
first
pont
,
tho'
it
hath
been
said
to
be
a
new
thing
,
and
grounded
upon
late
Presidents
,
yet
it
hath
been
so
often
adjudged
,
that
it
doth
not
now
deserve
a
Debate
;
't
was
solemnly
settled
in
Wright's
Case
,
and
upon
Consideration
,
2
Rolls
Abridg.
343
,
344.
3
Cro.
526.
Moore
399.
That
tho'
many
ancient
Authorities
have
been
lost
,
yet
in
Brooke
,
Presentment
al
Esglise
61.
there
is
the
Opinion
of
the
Bishop
of
Ely
for
it
.
And
as
to
the
old
Presidents
,
there
's
no
need
of
Recourse
to
them
,
because
continual
Usage
hath
been
with
the
King
in
this
matter
;
a
settled
Opinion
for
an
hundred
years
is
surely
enough
to
declare
the
Law
as
to
this
particular
:
This
is
sufficient
Evidence
to
prove
this
Right
in
the
Crown
,
there
being
no
Judicial
Opinion
against
it
.
The
reason
for
this
Prerogative
,
is
because
the
King
,
by
the
exercise
of
his
prerogative
in
the
promotion
,
hath
made
the
Avoidance
,
and
it
is
but
changing
one
Life
for
another
,
and
possibly
the
Patron
is
as
near
the
having
another
presentation
,
as
before
.
It
was
agreed
that
this
is
none
of
the
prerogatives
mentioned
in
the
Statute
de
Prerogativa
Regis
;
but
then
't
was
said
,
That
the
prerogative
to
present
by
Lapse
,
is
not
in
the
Statute
,
and
yet
that
is
admitted
;
so
that
the
omission
of
it
there
,
can
be
no
objection
;
this
is
a
prerogative
that
follows
a
Vacancy
occasioned
by
the
exercise
of
the
prerogative
,
for
such
it
is
to
make
Bishops
.
The
King
first
made
them
by
the
donation
of
a
Ring
and
Staff
,
then
by
a
Conge
d'Eslier
,
the
King
gave
licence
to
choose
,
and
approved
the
person
chosen
,
tho'
not
by
absolute
donation
,
as
before
.
By
the
25
Hen.
8.
the
Crown
is
restored
to
its
ancient
Prerogatives
,
and
there
are
Letters
Missive
,
directing
the
choice
of
such
a
person
.
In
Wright's
Case
in
3
Cro.
and
Moore
,
then
was
the
first
time
it
came
in
question
;
and
it
was
debated
and
considered
,
and
the
Judgment
upon
deliberation
settled
it
with
the
King
.
And
as
to
the
Objection
,
that
in
Dyer
228.
't
is
said
,
That
he
and
the
rest
of
his
Brethren
thought
otherwise
;
that
point
was
nothing
to
the
Case
then
in
question
:
But
however
,
't
is
observable
that
the
Queen
presented
Anno
6.
and
the
Patron
did
not
dispute
it
,
as
appears
in
Woodly's
Case
.
And
in
Owen's
Rep.
't
is
said
,
that
several
Presidents
in
Henry
the
Eighth's
time
were
searched
.
'T
is
true
,
that
in
11
Hen.
4.67
.
and
21
Edw.
4.33
.
the
King
did
not
intitle
himself
by
virtue
of
his
Prerogative
,
but
by
reason
of
the
Temporalties
being
in
his
hands
;
those
Cases
can
influence
nothing
in
this
matter
,
because
the
King's
Prerogative
consists
not
in
ousting
of
himself
,
but
of
a
Stranger
;
it
is
to
present
in
the
turn
of
another
upon
such
a
Vacancy
,
but
not
where
he
is
intituled
himself
,
there
he
presents
by
virtue
of
his
own
Interest
.
As
to
the
Objection
,
That
the
Old
Books
are
silent
about
this
Prerogative
;
't
was
answer'd
,
That
before
the
Statute
of
Provisors
25
Edw.
3.
the
King
was
defeated
of
his
Prerogative
by
reason
of
the
Pope's
Provisions
,
and
therefore
the
King
could
not
have
it
;
whereas
't
is
the
Exercise
of
his
Prerogative
of
Promotion
,
that
gives
him
this
Prerogative
of
presenting
upon
this
Vacancy
by
such
Promotion
;
and
therefore
that
Statute
was
made
to
prevent
all
Incroachments
;
and
tho'
it
was
made
to
that
very
purpose
,
yet
the
Clergy
being
then
so
strongly
united
to
the
Pope's
Interest
,
the
Kings
of
England
could
not
use
that
Prerogative
,
and
frequent
Usurpations
were
made
upon
the
Crown
,
till
the
Pope's
Supremacy
was
denied
.
The
41
Edw.
3.5
.
shews
that
there
were
such
Usurpations
.
7
Hen.
4.
cap.
8.
complaint
is
made
of
them
:
and
5
Hen.
4.
num.
95.
Cotton
.
458.
And
thus
it
continued
till
the
Statute
about
the
Supremacy
28
Hen.
8.
the
Kings
are
to
make
the
Bishops
;
and
then
consequently
,
in
point
of
Law
,
the
right
of
presenting
was
restored
.
Then
't
was
urged
,
That
none
of
the
old
Books
do
mention
the
King
's
right
to
present
by
Lapse
,
except
in
Cawdries
Case
,
where
notice
is
taken
of
a
Case
in
the
time
of
Edw.
3.
but
that
is
not
to
be
found
.
Bro.
tit
.
Presentment
61.
is
as
much
Authority
for
this
as
that
in
Cawdries
Case
is
,
for
the
Prerogative
to
present
upon
Lapse
.
And
this
right
in
question
,
having
been
enjoyed
so
long
,
should
not
now
have
been
questioned
.
In
5
Edw.
2.
Maynard
148
,
198.
there
is
one
Instance
of
the
Patron
's
presenting
again
;
but
then
Provisions
were
common
and
usual
,
Walsingham
1313.
so
that
supposing
the
Patron
did
in
those
times
present
,
the
King
was
not
concerned
,
because
't
was
then
only
the
Pope's
right
,
as
was
thought
,
and
the
Pope
might
be
ignorant
of
the
matter
.
And
from
thence
't
was
argued
,
that
the
practise
of
those
Times
cannot
be
urged
as
Arguments
in
the
present
Case
.
Then
2.
it
was
urged
,
That
the
King
having
this
Prerogative
,
he
is
not
debarred
of
it
by
the
Dispensation
to
hold
it
,
&c.
nor
by
the
Act
of
Parliament
,
nor
by
the
King's
Confirmation
of
it
.
The
King
by
that
did
transfer
no
Right
to
the
Incumbent
,
but
meerly
did
continue
him
in
,
and
there
was
no
Avoidance
,
but
the
same
is
suspended
;
and
had
the
Incumbent
died
,
or
resigned
,
during
this
time
,
the
Church
had
been
void
by
such
Death
or
Resignation
,
and
had
debarred
the
King
of
his
Prerogative
:
The
Incumbent
still
remains
Incumbent
for
the
time
,
by
force
of
his
first
presentation
,
and
so
the
Dispensation
doth
prevent
the
Avoidance
:
He
is
not
in
by
force
of
any
Title
which
the
Dispensation
gives
him
,
but
of
his
old
Title
,
Jones
91.
161.
Vaughan
18.
3.
Then
't
was
argued
that
the
Act
of
Parliament
for
making
this
new
Parish
did
not
alter
the
Case
.
'T
was
said
,
that
the
making
of
this
a
Rectory
in
this
manner
,
doth
make
it
subject
to
this
prerogative
;
and
that
it
was
by
no
means
the
intent
of
the
Act
to
debar
the
prerogative
.
It
is
made
a
Parish
and
Rectory
,
such
as
others
are
,
subject
to
the
EcclesiasticalLaws
,
as
well
as
any
other
Benefice
,
under
the
obligation
to
Residence
,
and
liable
to
the
Common
Jurisdiction
and
Censure
of
the
Ordinary
;
and
't
is
to
be
made
vacant
by
the
same
ways
and
means
,
as
other
livings
are
;
the
words
Death
,
or
any
other
Avoidance
,
prove
it
to
be
so
:
Lapse
will
prevail
upon
this
Rectory
;
and
that
cannot
be
,
but
because
't
is
made
a
Rectory
,
and
presentative
.
It
cannot
be
doubted
,
but
that
the
next
Avoidance
might
have
been
granted
over
by
the
Bishop
of
London
,
before
any
Avoidance
was
.
Suppose
the
Bishop
of
London
had
died
,
and
this
Promotion
had
happened
,
should
not
the
King
have
presented
by
reason
of
the
Temporalties
;
and
yet
that
is
as
much
out
of
the
Words
of
the
Act
,
as
this
is
?
As
to
its
being
a
Donative
,
't
was
said
,
That
the
present
Rector
doth
not
come
in
by
Donation
;
and
tho'
't
is
true
,
That
the
King
cannot
present
to
a
Donative
upon
such
an
occasion
,
the
reason
is
,
because
the
Promotion
doth
not
make
a
Vacancy
of
the
Donative
,
it
doth
not
make
a
Cession
,
the
Parson
is
not
subject
to
Censures
as
other
Rectors
are
;
he
is
still
in
by
reason
of
the
Institution
of
the
Founder
,
so
that
nothing
can
be
inferr'd
from
thence
:
Suppose
the
Incumbency
of
a
Donative
had
been
immediately
turned
into
a
Rectory
,
would
not
that
have
subjected
it
to
this
Prerogative
:
'T
is
admitted
,
That
the
promotion
of
the
Rector
did
make
an
Avoidance
;
then
was
cited
Princes
Case
,
8
Rep.
Then
suppose
it
a
Donative
as
to
Dr.
Tennison
,
at
the
same
time
that
the
Church
becomes
vacant
,
the
Patronage
vests
;
and
then
the
King's
Prerogative
shall
take
place
,
either
codem
Instanti
,
or
before
:
But
here
the
Right
of
Patronage
did
vest
immediately
by
the
Act
;
he
that
is
to
present
when
the
Rectory
becomes
void
,
he
is
Patron
:
'T
is
like
a
Reversion
granted
cum
acciderit
,
there
is
a
present
Interest
vested
;
and
there
's
no
reason
why
it
should
not
be
so
,
in
Case
of
this
Act
of
Parliament
.
The
Stat.
of
12
Car.
2.
for
confirming
of
Livings
,
makes
the
then
Possessors
full
and
perfect
Incumbents
,
as
this
doth
,
were
not
these
Benefices
void
,
if
the
Parties
were
advanced
to
Bishopricks
,
and
upon
such
promotions
,
did
not
the
King
present
,
undoubtedly
he
did
.
Then
't
was
argued
,
That
't
was
never
the
Intent
of
this
Act
to
oust
the
King
of
this
Prerogative
;
the
first
Intent
was
to
make
a
Parish
,
and
establish
a
Rectory
,
that
was
the
true
design
.
Suppose
the
Act
had
only
vested
the
Advowson
in
my
Lord
of
London
,
and
had
not
mentioned
the
Lord
Jermyn
,
would
not
this
Prerogative
have
been
consistent
with
the
Right
of
Patronage
:
As
to
the
pretence
that
the
Bishop
is
to
present
first
,
that
is
only
to
make
a
Partition
;
't
is
an
Explanation
,
That
they
should
not
have
it
in
common
,
but
by
turns
.
The
holding
of
Dr.
Tennison
was
reckoned
as
one
turn
,
and
the
Bishop
was
to
have
the
next
;
besides
,
every
Act
of
Parliament
is
to
be
construed
according
to
the
Subject
Matter
,
and
not
further
than
the
Act
designs
and
intends
;
't
is
plain
,
from
the
Nature
of
the
thing
,
That
nothing
was
designed
but
to
settle
the
Rectory
,
and
establish
the
manner
of
Presentation
,
according
to
the
Agreement
of
the
parties
:
General
Words
shall
not
oust
the
King
of
his
Prerogative
,
since
he
is
not
named
,
3
Cor.
542.
Moor
540.7
Rep.
32.
Plowd.
240.
Hob.
146.
Here
are
no
Words
which
do
import
any
Intention
to
restrain
the
King
of
that
Right
with
respect
to
this
,
as
he
hath
with
respect
to
other
Rectories
.
The
King's
Prerogative
doth
not
interfere
with
their
being
two
Parishes
;
this
Prerogative
must
operate
upon
all
presentative
Livings
,
so
soon
as
they
are
made
so
.
This
can
never
be
pretended
to
be
partly
presentative
and
partly
donative
;
for
Dr.
Tennison
was
in
by
Act
of
Parliament
as
one
presented
:
Then
it
being
a
Cession
of
a
presentative
Rectory
,
whether
old
or
new
,
't
is
the
King's
Right
to
present
.
Vernon's
Case
,
4
Rep.
4.
Plowd.
127.
The
Dr.
came
in
not
by
Donation
,
but
was
rather
placed
in
by
Parliament
,
which
implies
in
it
the
Consent
,
and
all
the
necessary
Acts
of
the
Patron
and
Ordinary
:
Suppose
the
King
should
grant
away
his
own
Advowson
during
a
Plenarty
,
and
afterwards
such
a
Cession
should
happen
by
promotion
;
surely
that
would
not
deprive
the
King
of
his
prerogative
,
and
by
the
same
Reason
it
ought
not
in
this
Case
.
Wherefore
,
upon
the
whole
Matter
,
it
was
prayed
,
That
the
Judgment
should
be
affirmed
,
and
it
was
affirmed
accordingly
.
Dominus
Rex
,
Versus
Reginald
Tucker
.
WRit
of
Error
to
reverse
a
Judgment
given
in
B.
R.
for
Reversal
of
a
Judgment
against
T.
before
Commissioners
of
Oyer
and
Terminer
,
upon
an
Indictment
for
High
Treason
.
The
Record
is
to
the
Effect
following
:
Ad
Gen'
Session'
de
Oyer
et
Terminer
tent'
pro
Com'
Somerset
,
apud
Civitat'
Wellen'
in
dict
Com'
Somerset
,
corum
Francisco
Wythens
mil'
un'
,
&c.
Richardo
Heath
un'
,
&c.
Georgio
Strode
,
mil'
un'
Servient'
,
&c.
et
aliis
Sociis
suis
Justiciariis
dicti
Domini
Regis
per
Liter
as
Patentes
ipsius
Dom'
Regis
sub
magno
sigillo
Anglie
confect
eisdem
Francisco
Wythens
,
Richardo
Heath
,
Georgio
Strode
,
et
aliis
aliquibus
tribus
vel
pluribus
eorum
direct'
quorum
alter'
eorum
praefat
'
F.
W.
vel
Richardum
Heath
Dictus
Dominus
Rex
unum
esse
voluit
ad
inquirend'
per
Sacramentum
proborum
et
legalium
Hominum
Com'
praed'
ac
aliis
viis
modis
et
mediis
,
&c.
assignat'
per
Sacrament
'
Francisci
Warre
,
Baronett
'
,
&c.
proborum
et
legalium
hominum
Com'
Somerset
praed'
adtunc
et
ibid
impannellat'
jurat'
et
onerat'
ad
inquirend'
pro
Domino
Rege
pro
Corpore
Com'
praed'
presentat'
existit
quod
Reginald
Tucker
nuper
de
Long
Sutton
in
Com'
praed'
Gen'
et
Thomas
Place
nuper
de
Eddington
in
Com'
praed'
Yeoman
timorem
Dei
in
cordibus
suis
non
habentes
nec
debitum
ligeantie
sue
ponderantes
sed
Instigatione
diabolica
mot
'
et
seduct'
dilection'
ac
veram
et
debit'
obedientiam
quas
veri
et
Fideles
subditi
Domini
Jacobi
secundi
nuper
Regis
Anglie
,
&c.
erga
ipsum
Dominum
Regem
gererent
et
de
jure
gerere
tenentur
subtrahent'
et
machinant'
et
totis
viribus
suis
intendent'
pacem
et
Communem
tranquilitatem
,
&c.
proditoris
compassaverint
imaginat'
fuer'
et
intendebant
dictum
Dominum
Regem
supremum
et
naturalem
Dominum
suum
ad
mortem
adducere
et
contra
dictum
Dominum
Regem
supremum
verum
naturalem
et
indubitatum
Dominum
suum
,
prodotorie
levaverunt
guerram
,
&c.
contra
pacem
dicti
Domini
Regis
nunc
Coron'
et
Dignitat'
suas
ac
contra
formam
Statut'
in
hujusmodi
casu
edit'
et
provis'
.
Et
statim
de
premissis
in
Indictament'
praed'
specificat'
superius
eis
imposit'
per
cur'
hic
allocut'
qualiter
se
vellent
inde
acquietari
,
iidem
Reginald
Tucker
et
Thomas
Place
separatim
dicunt
,
&c.
The
Judgment
is
per
cur'
hic
quod
praed
'
Reginald
Tucker
et
Thomas
Place
ducantur
eteorum
uterque
ducatur
usque
ad
Gaolam
dicti
Domini
Regis
Com'
praed
'
unde
venerunt
,
et
abinde
usque
ad
locum
Executionis
trahantur
et
uterque
eorum
trahatur
et
super
furcas
ibidem
per
collum
suspendantur
et
viventes
ad
terram
prosternantur
et
uterque
eorum
prosternatur
et
interiora
sua
extra
ventres
eorum
et
utriusque
eorum
capiantur
ipsisque
viventibus
ibidem
comburantur
,
et
quod
capita
eorum
et
utriusque
eorum
amputentur
quodque
corpora
eorum
et
utriusque
eorum
in
quatuor
partes
dividantur
et
quod
capita
et
quarteria
illa
ponantur
ubi
Dominus
Rex
ea
assignare
voluit
,
&c.
And
now
it
was
argued
on
the
behalf
of
the
King
,
That
this
Reversal
was
not
justifiable
;
that
the
Exceptions
taken
below
were
many
,
and
as
to
the
Pretence
that
secreta
membra
amputentur
was
omitted
;
the
same
was
not
allowed
as
Error
below
,
by
reason
of
the
many
Precedents
which
in
the
Entries
did
omit
it
.
That
tho'
the
Practice
be
common
to
pronounce
it
,
yet
few
or
no
ancient
Records
do
mention
it
;
that
in
3
Inst.
210.
where
the
Judgment
is
taken
notice
of
,
this
is
not
part
In
Plowd.
387.
't
is
omitted
,
that
Interiora
includes
it
,
In
Bro
coron
'
128.
't
is
not
inserted
;
That
this
was
never
entred
as
part
of
the
Judgment
,
till
12
Car.
2.
Then
as
to
the
separatim
allocut
'
upon
the
Arraignment
,
that
was
likewise
over-rul'd
below
;
for
it
must
be
intended
a
several
Demand
or
Question
:
And
the
same
is
implied
in
this
Entry
,
as
much
as
if
it
had
been
express'd
,
and
the
Precedents
are
both
ways
.
But
the
main
and
only
Exception
,
for
which
the
Court
revers'd
the
Judgment
,
was
,
That
in
the
Indictment
,
't
is
not
said
to
be
a
Fact
done
contra
ligeantie
sue
debitum
;
and
as
to
this
,
it
was
argued
,
That
it
was
not
necessary
to
use
those
very
Words
,
That
they
are
not
Terms
of
Art
,
such
as
are
absolutely
necessary
;
they
are
not
like
to
the
Words
Burglariter
,
Felonice
,
Murdravit
,
and
the
like
;
That
proditorie
implies
it
,
that
't
is
plainly
apparent
to
be
contrary
to
his
Allegiance
;
That
all
the
whole
Indictment
shews
it
to
be
so
,
't
is
not
weighing
his
Allegiance
,
't
is
against
his
true
natural
Liege
,
Lord
and
Sovereign
,
That
it
appears
he
was
a
natural
born
Subject
;
That
the
very
Words
themselves
are
only
of
Aggravation
,
That
they
may
as
well
be
laid
precedent
to
the
Fact
as
in
the
Conclusion
;
That
here
is
that
which
is
Tantamount
.
That
Sir
Henry
Vane's
Indictment
was
thus
,
Cotton
and
Messingers
,
Sid.
328.
The
Scotch
Officers
in
Suffolk
,
Lamberts
,
Hackshams
,
Titchburns
,
and
many
more
.
That
't
is
true
,
the
Fact
in
the
Indictment
ought
not
to
be
made
good
by
Intendment
or
Inference
;
but
if
there
be
Words
which
shew
,
that
the
Party
owed
Allegiance
,
it
s
enough
.
An
alien
Enemy
is
not
indictable
in
this
manner
;
but
here
't
is
shewn
,
That
he
is
a
Person
capable
of
committing
Treason
,
and
that
the
Act
done
was
against
his
Duty
and
Obedience
which
he
owed
as
a
Subject
;
That
many
Precedents
have
been
thus
,
That
nimia
subtilitas
in
jure
reprobatur
;
That
a
Certainty
to
a
common
Intent
is
sufficient
,
Longs
case
;
That
in
2
Rolls
.
abr.
82.
contra
coron'
et
dignitat'
suas
,
is
held
not
necessary
;
wherefore
,
and
for
other
Reasons
then
urged
,
't
was
prayed
,
That
the
Reversal
might
be
reversed
,
and
the
King
restored
,
&c.
On
the
other
side
,
it
was
argued
,
That
this
Reversal
was
just
;
That
this
Arraignment
being
Joint
,
for
want
of
separatim
,
makes
the
Proceeding
Erroneous
;
That
the
Precedents
do
use
the
Word
separatim
;
and
abundance
of
Entries
were
mentioned
,
as
Leach
and
Ruthford
,
et
al'
.
28
Hen.
8.
Dudely
,
Gates
,
and
Palmer
,
1
and
2
Phil.
and
Mar'
.
Throgmorton
and
Weddall
,
2
and
3
Ph.
and
M.
Peckham
and
Daniel
,
eodem
Anno.
Blunt
and
Danverse
,
44.
Eliz.
Earl
of
Ess.
and
S.
eodem
Anno.
Guy
Fawks
and
Sir
Everard
Digby
,
3
Jac.
1.
Harrison
,
Scot
,
and
the
other
Regicides
,
12
Car.
2.
1660.
Green
,
Berry
,
and
Hill
,
for
the
Murder
of
Sir
.
E.
Godfrey
,
1678.
Ireland
,
Pickering
,
and
Grove
,
31
Car.
2.
rot
'
.
242.
Whitebread
,
Fenwick
,
et
al'
.
32
Car.
2.
rot
'
.
224.
Johnson
et
al'
.
2
Will
.
et
Mar.
num
'
.
57.
and
Lord
Preston
and
Ashton
,
Trin.
3
Will
.
et
Mar.
n.
16.
separatim
allocut
'
.
and
many
more
.
Besides
,
the
Nature
of
the
thing
is
such
,
as
requires
a
several
Arraignment
,
because
they
may
plead
several
Pleas
,
and
they
are
several
Offences
;
and
tho'
they
plead
in
this
Case
severally
,
that
's
not
enough
;
for
they
ought
to
be
askt
severally
:
But
this
was
not
so
much
insisted
on
,
as
the
next
Error
,
the
Omission
of
secreta
in
the
Judgment
;
't
is
part
of
the
Judgment
upon
the
25
Edw.
3.
for
compassing
,
&c.
tho'
for
coining
,
't
is
only
to
be
drawn
and
hanged
,
according
to
Morgan's
Case
,
Cro.
Car.
383
,
Stamp
.
182.
3.
Inst.
15
,
17.
Finch's
Law
,
lib.
2.
cap.
Treason
,
they
are
all
secreta
membra
abscindant
'
,
as
well
as
interiora
;
all
common
Books
have
it
,
as
Bolton's
Justice
of
the
Peace
,
tit
.
Prefidents
of
Indictments
for
High
Treason
,
38
,
42.
Dalton's
Justice
,
p.
335.
Sheppard's
Epitome
,
tit
.
Crown
,
and
all
those
common
Abridgments
,
&c.
Lord
Preston
and
Ashton's
was
drawn
by
good
Advice
,
Harrison
and
al'
.
12
Car.
2.
Ireland
,
Pickering
,
and
Grove
,
1678.
Whitehread's
,
1679.
Walcott's
,
1683.
Langhorn's
,
31.
Car.
2.
Colonel
Sidney's
,
1683.
The
Earl
of
Stafford's
in
1680.
was
thus
,
upon
Debate
and
Consultation
with
all
the
Judges
,
Dominus
Rex
,
versus
Owen
,
1
Rolls
.
Rep
185
,
186.
there
't
is
mentioned
.
But
then
it
was
chiefly
insisted
on
,
That
the
Reversal
was
to
be
maintained
for
the
Error
in
the
Indictment
;
that
contra
ligeantie
sue
debitum
was
the
general
Form
;
that
all
the
great
Men
in
all
Ages
,
who
had
been
of
Counsel
for
the
Crown
,
had
inserted
it
:
That
all
the
Indictments
,
the
first
Assizes
,
after
Monmouth's
Rebellion
,
which
were
drawn
or
perused
by
Sir
H.
Poll
'
had
this
Conclusion
:
That
Ashtons
,
Crosses
,
Gaunts
,
Cornishes
,
Earl
of
Staffords
,
Batemans
,
Ayliffs
,
Goodenoughs
,
Hone
,
Blague
,
Rowse
,
Armstrong
,
Sir
Robert
Peyton
,
Langhornes
,
Lord
Bellasis
,
Venner
,
Harrisons
,
Faukes
,
Sir
Everard
Digbyes
,
Patricius
Dolphie
,
Pasch.
41
Eliz.
John
Tipping
34
Eliz.
are
all
thus
;
and
the
Prints
are
so
likewise
,
3
Inst.
214.
Fitzh
.
Justiee
,
pag.
218.
Plowd.
387.
Coke's
Entries
361.
Cro.
Car.
120
,
122
,
123.
and
a
great
number
of
Particulars
more
,
which
might
be
cited
.
Then
't
was
urged
that
Reason
doth
require
this
,
for
that
Treason
is
punishable
as
a
Breach
of
Allegiance
;
that
that
is
the
very
Essence
of
Treason
;
that
if
the
Fact
be
not
alledged
to
be
against
his
Allegiance
,
't
is
not
Treason
;
that
't
is
by
reason
of
his
Allegiance
that
he
can
commit
Treason
;
and
therefore
't
is
,
that
an
Alien
Enemy
,
who
was
never
protected
,
can't
commit
Treason
,
because
he
owed
no
Allegiance
:
and
there
may
be
many
Acts
done
,
which
look
like
a
levying
of
War
,
without
any
Breach
of
Allegiance
;
and
for
that
was
quoted
King
John's
Charter
made
at
Rumney
Mead
,
18
die
Junii
Anno
Regni
17
Rot.
Pat.
17.
m.
13.
a
Transcript
whereof
is
in
Matthew
Paris
245.
Anno
1215.
which
Charter
was
ratified
four
times
within
nine
years
after
.
The
first
Confirmation
was
granted
1
Hen.
3.
and
probably
at
his
Coronation
;
for
there
was
a
Charter
dated
at
Glocester
6
Febr.
Rot.
Pat.
1
Hen.
3.
m.
13.
that
they
should
enjoy
Libertatibus
Regno
nostro
Anglie
a
Patre
nostro
et
nobis
concessis
.
In
the
second
year
of
his
Reign
,
he
sends
a
Mandate
to
the
several
Sheriffs
to
proclaim
this
Charter
amongst
others
:
Rex
,
&c.
Salutem
,
Mittimus
tibi
Chartas
de
Libertatibus
,
&c.
Mandantes
quatenus
eas
legi
facias
in
pleno
comitatu
tuo
,
Dat'
22
Febr.
Rot.
Claus.
2
Hen.
3.
Then
was
cited
Fox's
Acts
and
Monuments
,
ad
Ann.
1218.
That
after
Michaelmas
,
this
King
held
a
Parliament
at
Westminster
,
wherein
he
confirmed
and
ratified
,
by
his
Charter
,
all
the
Franchises
and
Liberties
which
were
made
and
given
by
King
John
his
Father
.
In
the
seventh
year
of
his
Reign
,
viz.
the
Sixteenth
of
his
Age
,
he
took
the
Government
into
his
own
Hands
;
and
then
the
Archbishop
of
Canterbury
,
in
open
Parliament
,
doth
mind
him
of
the
Oath
sworn
in
his
Name
by
the
Earl
of
Pembroke
(
Rectore
Regis
&
Regni
)
and
others
,
at
the
Pacification
between
him
and
the
Dauphin
,
that
he
would
restore
and
confirm
those
Liberties
to
his
Subjects
,
for
which
the
War
broke
out
between
his
Father
and
the
Barons
.
Then
was
quoted
what
Henry
the
Third
promised
,
when
he
invited
Henry
de
Lucy
to
come
in
to
him
,
1
Hen.
3.
m.
16.
which
is
in
very
strange
language
,
if
his
Allegiance
had
been
broken
.
Then
was
cited
Sadler
262.
and
Spelman
verbo
ligeantia
;
and
Calvin's
Case
,
7
Rep.
expounding
of
that
word
:
and
the
old
Custumer
of
Normandy
,
cap.
43.
And
the
said
,
and
other
Authorities
,
were
inforced
and
amplified
in
such
manner
,
as
is
not
fit
to
be
remembred
.
Then
't
was
urged
,
That
as
the
Subject
Matter
of
this
Indictment
did
require
these
words
,
so
the
Reason
of
the
Law
in
other
Cases
did
warrant
them
to
be
necessary
here
:
that
vi
&
armis
was
necessary
,
till
the
Statute
of
Hen.
8.
made
it
needless
:
and
't
would
be
strange
,
that
an
Indictment
for
a
Trespass
,
setting
forth
an
Assault
and
Battery
,
with
force
of
Arms
,
should
be
ill
for
want
of
contra
Pacem
,
and
this
should
be
good
,
without
contra
ligeantie
sue
debitum
:
contra
formam
statut
'
is
necessary
,
tho'
the
Fact
be
alledged
,
sufficiently
appearing
to
be
within
a
Statute
Law
.
Indictments
are
not
to
be
made
good
by
Intendment
or
Implication
,
Stamford
96.
Trin.
18
Edw.
4.10
.
Furatus
est
without
felonice
,
not
good
;
Felonice
abduxit
without
cepit
,
not
good
.
So
for
a
Rape
,
quod
ipsam
contra
voluntatem
suam
carnaliter
cognovit
,
without
rapuit
,
is
ill
,
9
Edw.
4.26
.
and
so
is
Dyer
304.
Murdravit
is
necessary
:
No
Words
or
Terms
of
Art
are
to
be
supplied
by
any
other
Phrases
equivalent
or
tantamount
in
Sense
,
for
the
sake
of
certainty
;
because
if
such
loose
Descriptions
should
be
allowed
,
't
would
subject
Mens
Actions
too
much
to
the
Power
of
Construction
,
2
Cro.
20
,
142
,
187
,
527.
And
in
all
Indictments
for
Offences
committed
,
between
Decemb.
15.
and
Febr.
13.
1688.
the
Conclusion
was
contra
pacem
regni
.
Then
was
cited
Vaux's
Case
4
Rep.
39.
2
Rolls
Abridg.
82.
Then
't
was
said
that
there
were
express
Authorities
for
the
Defendant
;
3
Inst.
11.
that
the
Indictment
of
Treason
concludes
thus
,
1
Inst.
129.
is
the
same
,
and
Dyer
144.
to
the
like
effect
.
And
what
is
said
in
the
Margin
of
the
new
Dyer
,
is
very
remarkable
as
to
Mary
Queen
of
Scotland
:
Calvin's
Case
7
Rep.
6.
is
full
and
express
,
as
to
the
reason
of
the
thing
;
and
it
is
founded
upon
the
Difference
,
between
an
Alien
Enemy
and
a
Subject
,
Courteen's
Case
,
Hob.
271.
Hobart
is
of
Opinion
,
according
to
Calvin's
Case
,
that
Indictment
against
Alien
amie
,
it
must
conclude
contra
debitum
ligeantie
sue
.
Besides
,
here
are
no
words
which
carry
the
same
Sense
,
or
are
equivalent
to
it
;
Proditorie
doth
imply
a
Treachery
or
Falshood
,
and
that
he
might
be
guilty
of
,
and
yet
not
act
contrary
to
his
Allegiance
;
for
at
that
rate
every
Breach
of
Trust
,
as
to
the
King
,
would
be
Treason
:
debitum
ligeantie
sue
minime
ponderantes
,
is
not
sufficient
;
for
a
Man
may
not
weigh
his
Allegiance
,
and
yet
not
act
contrary
to
it
:
then
contra
naturalem
Dominum
suum
supremum
verum
&
indubitat
'
;
those
words
in
themselves
are
not
necessary
,
and
anciently
were
not
inserted
:
In
old
time
't
was
only
contra
Dominum
Regem
;
and
't
will
be
hard
to
say
,
that
the
use
of
words
unnecessary
should
supply
what
is
necessary
,
and
hath
anciently
been
used
.
Those
words
do
only
import
,
that
the
late
King
was
King
of
the
Place
where
the
Defendant
was
born
and
lived
;
and
cannot
make
it
appear
,
that
his
Fact
was
contrary
to
the
Laws
of
the
Land
,
and
the
Duty
of
his
Allegiance
,
as
a
Subject
to
him
.
Then
supposing
it
not
necessary
in
the
Conclusion
;
for
,
as
some
Presidents
are
in
West's
Symboleography
,
't
is
first
,
as
contra
ligeantie
sue
debitum
levavit
guerram
,
yet
it
ought
to
be
in
the
Indictment
,
in
one
part
or
another
.
The
formal
Reason
of
the
Facts
being
Treason
,
is
because
't
is
against
his
Allegiance
,
and
that
ought
to
be
expressed
;
all
the
other
Expressions
urged
on
the
other
side
,
are
at
the
most
but
Argumentative
,
and
do
not
directly
affirm
the
thing
which
is
necessary
to
make
the
Offence
.
As
to
the
Presidents
which
are
the
other
way
,
they
are
but
few
;
those
in
the
Reign
of
Hen.
8.
and
Queen
Elizabeth
,
they
are
upon
particular
Statutes
;
as
for
denying
the
Supremacy
;
taking
Orders
under
the
Pope
,
and
the
like
;
they
are
not
contra
ligeantiam
in
the
nature
of
the
Offence
,
and
there
contra
formam
statut
'
is
enough
:
But
no
Answer
can
be
given
to
the
Case
of
Lopez
in
Calvin's
Case
,
where
the
Judges
met
and
considered
,
how
the
Indictment
should
be
,
and
agreed
to
be
contra
supremum
Dominum
suum
in
Anglia
;
and
the
Conclusion
to
be
contra
ligeantie
sue
debitum
.
Whereupon
,
for
these
and
other
Reasons
,
it
was
prayed
,
that
the
Judgment
of
Reversal
given
in
the
Kings
Bench
might
be
affirmed
;
and
it
was
affirmed
accordingly
.
Joseph
Eastmond
Executor
of
Henry
Eastmond
and
Samuel
Nayle
Appellants
,
Versus
Edwyn
Sandys
Clerk
,
Respondent
.
APpeal
from
a
Decree
of
the
Court
of
Exchequer
:
The
Case
was
no
more
than
this
;
The
Parish
of
Yeovilton
consisting
much
in
Pasture
Land
,
and
the
Respondent
having
been
Rector
thereof
for
Twenty
years
last
past
and
upwards
,
and
being
intituled
to
the
great
and
small
Tythes
,
and
all
other
Dues
within
the
said
Rectory
,
he
did
exhibit
his
Bill
in
that
Court
,
against
the
Appellant
,
Joseph
in
his
own
right
,
and
as
Executor
of
Henry
his
Father
,
and
against
the
other
Appellant
Samuel
Nayle
,
for
Agistment
Tythes
,
for
depasturing
and
fatting
their
Oxen
,
and
other
unprofitable
Cattle
,
within
the
said
Rectory
,
from
the
Year
1677.
to
the
time
of
exhibiting
his
Bill
,
which
was
in
Michaelmas
Term
1692.
The
Appellant
Joseph
Eastmond
by
his
Answer
admitted
,
that
he
had
Assets
sufficient
to
answer
the
Plaintiffs
Demands
;
and
both
of
them
admitted
,
that
they
and
the
Testator
had
fatted
and
depastured
divers
Oxen
yearly
upon
their
Lands
in
the
said
Parish
,
but
said
,
that
some
of
them
were
first
used
to
the
Plough
,
and
afterwards
fatted
when
turned
off
from
the
Plough
.
The
Court
of
Exchequer
did
thereupon
,
viz.
May
26.
1696.
decree
Tythe
Herbage
to
be
paid
for
the
Appellants
and
the
Testators
Oxen
and
unprofitable
Cattle
,
not
used
for
the
Plough
;
and
also
for
their
Oxen
and
unprofitable
Cattle
used
for
the
Plough
,
for
and
during
the
time
they
were
grazed
and
fatted
in
the
Parish
for
Sale
,
after
they
were
turned
off
from
the
Plough
.
And
now
it
was
insisted
on
in
favour
of
the
Appeal
,
that
the
Decree
was
unjust
;
and
then
were
quoted
some
Texts
of
Scripture
about
muzzling
the
Ox
,
&c.
And
also
it
was
urged
,
That
that
part
of
the
Decree
concerning
Oxen
once
used
to
the
Plough
,
was
erroneous
;
and
there
were
cited
all
the
Cases
in
the
Books
for
exemption
of
Plough-Cattle
from
Tythe
Herbage
,
and
that
this
was
double
Tything
:
And
it
was
insisted
on
,
that
the
Reason
of
the
thing
was
against
it
in
this
Case
,
because
the
agistment
of
these
Cattle
,
was
necessary
to
sustain
that
labour
which
promoted
the
Grain
,
of
which
Tythe
was
paid
;
that
this
Priviledge
extended
to
all
such
Oxen
as
ever
had
been
used
to
the
Plough
;
that
the
exemption
did
continue
after
they
were
forborn
to
be
used
at
the
Plough
;
for
there
was
the
same
reason
to
continue
the
exemption
afterwards
,
as
there
could
be
to
allow
it
during
the
Interval
,
when
they
do
not
draw
the
Plough
.
And
for
these
and
other
Reasons
urged
,
't
was
prayed
,
That
the
Decree
for
Tythe
quoad
such
Cattle
as
ever
had
been
used
with
the
Plough
,
should
be
reversed
.
On
the
other
side
it
was
urged
,
That
the
said
Decree
is
agreeable
to
the
Law
,
and
supported
by
many
Resolutions
in
the
Court
of
Exchequer
,
that
there
was
a
Reason
for
Tythe
in
this
Case
;
because
these
Cattle
,
tho'
formerly
used
to
the
Plough
,
they
ceased
now
to
belong
to
it
,
and
consequently
Tythes
became
due
;
that
there
's
a
Difference
in
the
nature
of
the
thing
;
for
when
they
feed
in
order
to
labour
,
the
Parson
hath
a
Tenth
of
the
Benefit
produced
thereby
,
but
when
they
are
fatted
only
for
Sale
,
't
is
otherwise
;
That
this
was
a
settled
and
allowed
Difference
in
the
Exchequer
;
That
while
the
Oxen
are
working
,
no
Tithe
shall
be
paid
for
their
feeding
,
because
there
is
Tithes
of
other
things
arising
by
the
Labour
of
such
Cattle
;
but
when
they
do
no
Work
,
and
are
turned
off
to
be
fatted
and
are
graz'd
,
there
Tithes
shall
be
paid
for
the
Herbage
which
they
eat
,
they
being
no
way
beneficial
to
the
Parson
in
any
other
Tithes
:
And
many
Cases
in
scacc
'
were
cited
to
warrant
this
Distinction
;
and
't
was
said
,
That
none
could
be
alledged
to
the
contrary
,
wherefore
't
was
prayed
,
That
the
Decree
might
be
affirmed
,
and
it
was
affirmed
.
Magdalen
Foubert
,
Widow
,
Grandmother
and
Administratrix
of
Katherine
Frances
Lorin
de
Granmare
,
Appellant
,
Versus
Charles
de
Cresseron
,
Administrator
,
with
the
Will
annexed
of
Katherine
Granmare
,
Respondent
.
APpeal
from
a
Decree
in
Chancery
,
the
Case
was
thus
,
Peter
Lorin
(
Son
of
the
Appellant
)
and
Katherine
de
Mandoville
came
to
an
Agreement
to
marry
,
and
that
the
longest
Liver
should
take
all
,
whether
Issue
or
not
:
A
publick
Notary
took
and
entred
that
Agreement
in
his
Book
,
and
both
Peter
and
Katherine
subscribed
the
same
so
entred
;
and
then
being
written
fair
,
they
signed
it
again
,
and
the
now
Appellant
and
other
Relations
subscribed
it
:
They
Intermarried
,
Peter
was
kill'd
in
Flanders
,
and
left
Katherine
with
Child
;
afterwards
,
she
being
near
her
time
,
thought
fit
to
make
her
Will
,
which
she
wrote
with
her
own
hand
in
French
,
in
these
Words
,
Quoy
que
je
sois
presentement
en
perfaite
santé
de
corps
et
d'esprit
,
cependant
ne
sçachant
de
quelle
maniére
il
plaira
à
Dieu
de
disposer
de
moy
dans
ma
couche
,
Je
trove
à
propos
de
marquer
jcy
més
dernieres
volontés
:
En
cas
qu'il
luy
plaise
de
me
retirer
de
ce
monde
,
si
c'est
sa
volonté
de
donner
dés
jours
à
mon
enfant
,
Je
luy
laisse
generalement
tout
ce
qui
peut
m'appartenir
,
&
supplie
trés
humblement
Madame
Foubert
,
ma
soeur
Lorin
et
Mr
'
le
Bas
d'en
prendre
soin
;
J'espere
que
Mr.
Foubert
,
&
le
Major
,
à
la
consideration
de
feu
son
paure
Pere
,
luy
rendront
lés
services
dont
il
aura
besoin
,
&
que
Dieu
ne
l'abandonnera
point
:
Je
l'en
supplie
de
toute
mon
ame
,
comme
aussi
de
benir
toute
la
famille
fait
a
Londres
ce
16th
de
Novembre
,
1693.
par
moy
,
Catherine
de
Granmare
:
After
which
the
said
Katherine
annexed
a
Codicil
to
her
Will
,
in
these
words
,
viz.
En
cas
qu'il
plaise
à
Dieu
de
retirer
mon
Enfant
aussy
bien
que
moy
,
Je
donne
à
Madamoiselle
le
Bas
ma
bague
de
Diamans
,
mon
Ecritoire
garnie
d'argent
,
&
une
boëte
de
rubants
neufs
;
Je
donne
a
Madamoselle
Peireaus
mon
habit
brun
doublé
couleur
de
paille
,
et
mon
habit
Jaune
;
une
demie
douzanie
de
més
Chemises
:
Je
donne
au
fils
à
Jacob
dix
livres
sterlings
pour
le
mettre
en
Métier
,
&
à
son
pere
ce
qui
se
trovera
dés
habits
de
mon
Mary
:
Je
donne
a
Catharine
Williams
,
ma
filleule
,
dix
livres
sterlings
pour
la
mettre
en
mètier
Tout
le
reste
de
ce
qui
m'appartient
tant
en
Meubles
,
que
Linge
,
Vaissell
d'argent
,
&
Argent
Monnoye
,
qui
m'est
dù
,
Je
le
laisse
à
ma
soeur
Lorin
,
&
a
mess
'
de
Cresseron
,
pour
etre
egallement
partagé
,
entre
eux
;
J'excepte
seulement
le
portrait
de
mon
Cher
Mary
,
ma
bague
Turquoise
,
que
Je
donne
à
ma
soeur
Lorin
,
&
la
prie
de
garder
l'une
&
l'autre
tant
qu'elle
vivra
:
Je
donne
aussy
a
Monsieur
Cresseron
ma
montre
d'Or
que
le
souhaite
qu'il
garde
et
porte
pour
l'amour
de
moy
;
fait
à
Londres
ce
16th
Novembre
par
moy
Catherine
Granmare
.
Then
she
was
deliver'd
of
a
Daughter
,
and
a
few
Hours
after
died
,
and
the
Daughter
did
survive
her
near
two
Years
,
and
then
died
:
And
after
her
Mother's
Death
(
there
being
no
Executor
named
)
Administration
of
the
Estate
of
the
Testatrix
was
committed
during
the
Minority
of
the
Child
with
the
Will
annexed
;
but
the
Appellant
possest
her self
of
the
Estate
,
being
about
600
l.
Value
.
Then
after
the
Child's
Death
,
the
Appellant
as
next
of
Kin
,
took
Administration
to
the
Child
,
and
also
to
Mrs.
Granmare
.
The
Respondent
exhibited
his
Bill
,
claiming
a
Moiety
of
the
Residuum
by
force
of
the
Codicil
,
the
Appellant
by
Answer
insisted
upon
the
Invalidity
of
the
Agreement
between
Peter
and
Katherine
,
but
that
being
waived
,
the
Question
arose
upon
the
words
of
the
Will
,
and
particularly
these
,
donner
des
jours
,
and
't
was
insisted
,
That
nothing
was
designed
to
the
Respondent
,
but
only
in
case
the
Child
were
still-born
,
or
should
die
in
her
lying
in
;
whereupon
the
Court
ordered
the
Cause
to
be
continued
in
the
Paper
,
and
that
both
sides
should
take
time
to
procure
the
Opinion
of
French
Men
born
,
and
acquainted
with
the
Laws
of
France
,
and
the
Cause
coming
on
again
to
be
heard
before
the
Lord
Chancellour
;
and
upon
reading
of
several
Opinions
of
French
Gentlemen
bred
to
the
Laws
of
that
Country
,
the
Court
declared
,
That
the
Respondent
was
well
intituled
to
his
Moiety
of
the
Residue
,
after
the
particular
Legacies
,
Debts
,
Funerals
,
and
other
Allowances
deducted
,
and
decreed
the
same
accordingly
.
It
was
argued
on
the
behalf
of
the
Appellant
,
That
this
Decree
was
erroneous
,
that
the
proper
Signification
of
those
words
,
was
no
more
than
to
give
Life
,
that
it
was
so
translated
at
Doctors
Commons
,
That
that
Translation
does
agree
with
the
Opinion
of
several
of
the
most
learned
Divines
amongst
the
French
Refugees
here
;
That
't
is
so
interpreted
in
the
Famous
Dictionary
of
the
French
Academy
,
dedicated
to
that
King
,
where
the
Words
are
as
follows
,
viz.
lés
jours
au
pluriel
,
signifie
la
vie
,
That
Days
in
the
plural
signifie
Life
,
without
any
Determination
of
time
;
That
there
are
few
Frenchmen
of
any
Understanding
,
but
will
acknowledge
,
That
by
lés
jours
d'une
personne
,
the
Days
of
one
(
whether
they
be
many
or
few
in
number
)
must
be
understood
the
Life
,
&c.
That
the
Testatrix
here
could
mean
no
other
by
Days
,
but
Life
;
when
she
said
,
That
in
case
it
pleased
God
to
take
her
out
of
this
World
,
if
it
was
his
Will
to
give
Days
,
to
give
Life
to
her
Child
,
she
left
it
all
that
belonged
to
her
;
knowing
well
,
That
if
the
Child
was
born
alive
,
it
must
be
maintain'd
from
that
Moment
,
out
of
what
was
so
left
it
,
that
it
appeared
from
the
Preamble
of
the
Codicil
,
viz.
In
case
it
shall
please
God
to
take
away
my
Child
,
as
well
as
my self
,
then
,
&c.
That
the
Testatrix
never
intended
the
Estate
to
go
over
,
unless
the
Child
died
as
well
as
her self
in
her
lying
in
.
Then
it
was
argued
from
the
Nature
of
the
particular
Legacies
;
they
were
of
such
a
sort
,
as
that
they
must
be
given
without
Sense
or
Reason
,
had
she
not
supposed
her
Child's
Death
,
as
well
as
her
own
,
in
her
lying
in
;
for
otherwise
those
new
Ribbons
must
become
old
,
which
were
intended
as
a
Present
to
a
young
Gentlewoman
,
Clothes
lockt
up
in
a
Trunk
would
have
been
of
no
use
to
Persons
then
in
Distress
,
and
the
poor
Orphan
had
gone
too
far
in
Years
to
learn
a
Trade
.
Then
other
Things
are
given
as
Tokens
to
be
kept
,
and
worn
by
them
for
her
sake
,
as
long
as
they
lived
:
Now
what
Reason
can
be
assigned
for
this
,
if
she
did
not
mean
and
suppose
a
Death
in
her
lying
in
:
From
whence
it
was
inferred
,
That
the
Intention
of
the
Testatrix
was
to
give
all
she
had
to
her
Child
,
in
case
she
survived
her
;
and
if
it
did
not
survive
her
,
but
was
taken
away
as
well
as
her self
,
in
her
lying
in
,
then
her
Intention
was
to
give
that
same
All
(
which
she
had
given
to
her
Child
)
to
other
People
,
as
specified
in
the
Will
;
and
unless
this
were
the
Intention
,
the
Child
must
have
starved
,
or
lived
upon
Charity
,
not
having
the
Property
of
what
was
left
it
;
and
the
Condition
precedent
,
according
to
the
Respondents
Exposition
,
excludes
the
Child
till
its
Years
of
Discretion
;
wherefore
't
was
prayed
that
the
Decree
might
be
reversed
.
On
the
other
side
it
was
argued
with
the
Decree
,
that
the
same
was
just
;
that
no
Objection
could
arise
from
the
Nature
of
the
other
Legacies
,
or
of
this
,
as
being
reasonable
or
unreasonable
;
for
that
't
is
the
Natural
Right
and
Priviledge
of
every
Person
,
to
dispose
of
that
which
they
have
,
at
their
pleasure
,
to
do
what
they
will
with
their
own
;
a
Priviledge
so
certain
,
that
tho'
't
is
used
many
times
to
ill
purposes
,
yet
the
Law
cannot
interpose
,
nor
restrain
the
Proprietor
,
no
not
to
preserve
him
and
his
Family
from
ruine
,
as
daily
Experience
shews
:
That
it
is
agreeable
to
Law
and
Justice
,
and
to
true
Piety
,
to
see
that
the
Will
of
the
Dead
be
performed
;
and
tho'
the
Law
have
ascertained
how
Estates
shall
go
,
when
there
is
no
Will
,
yet
when
there
is
a
Will
that
disposes
of
it
otherwise
,
then
the
Law
would
do
;
the
Courts
below
will
compel
a
Performance
of
such
a
Disposition
,
as
the
Will
directs
.
Then
't
was
said
,
That
the
Intention
of
the
Testatrix
,
in
favour
of
the
Respondent
,
is
both
Charitable
and
Prudent
;
He
was
her
nearest
Relation
in
England
,
and
considering
a
great
part
of
what
she
left
was
once
her
Husbands
,
she
honourably
gave
as
much
to
his
,
as
to
her
own
Relations
,
making
her
Husband's
Sister
,
and
the
Respondent
Charles
,
residuary
Legatees
to
share
equally
,
and
so
is
the
Decree
:
And
to
Reverse
this
Decree
,
and
permit
the
Appellant
to
go
away
with
the
whole
,
(
as
she
must
,
if
the
Decree
be
reversed
)
doth
directly
destroy
all
the
Prudent
and
Charitable
Intentions
of
the
Testatrix
,
and
carries
the
Estate
where
she
never
designed
it
,
viz.
to
the
Appellant
.
Then
't
was
argued
,
That
the
Court
of
Chancery
had
done
well
in
taking
the
Opinion
of
Persons
skilled
and
knowing
in
the
Matter
in
question
;
that
the
Gentlemen
of
the
Long-Robe
of
that
Country
,
now
here
in
London
,
did
all
give
their
Opinions
;
that
according
to
their
Construction
of
these
words
in
a
Will
,
it
was
an
arrival
to
Years
of
Maturity
or
Age
enabling
to
dispose
;
that
unless
the
Child
had
lived
to
such
an
Age
,
as
that
she
had
been
capable
to
give
the
same
away
,
her
Representative
in
this
Case
,
could
not
be
intituled
to
it
.
Then
'
was
said
,
That
words
are
to
be
interpreted
according
to
the
Sense
and
Acceptation
of
those
which
use
them
:
That
the
Testatrix
was
a
Native
of
France
,
and
therefore
this
method
of
Inquiring
into
her
Meaning
was
just
and
reasonable
:
That
the
Courts
at
Law
have
frequently
consulted
Merchants
about
the
signification
of
Mercantile
Terms
,
and
Trinity
House
about
Marine
Phrases
;
so
in
like
manner
Grammarians
,
Criticks
,
Chymists
,
and
Artificers
have
been
in
the
Court
of
Kings
Bench
consulted
,
according
to
the
Nature
of
the
Thing
in
question
,
upon
words
belonging
to
,
and
used
in
their
respective
Professions
:
That
in
case
of
words
disposing
of
an
Estate
in
a
Foreign
Language
,
by
the
Will
of
a
Foreigner
,
the
Judgment
of
Divines
or
Grammarians
could
be
no
proper
Direction
to
the
Court
of
Chancery
;
but
the
Means
of
Information
must
be
from
those
who
were
acquainted
with
the
Rules
of
Interpretation
in
Case
of
Wills
amongst
those
People
:
That
the
Opinion
of
those
Gentlemen
was
sufficient
to
justifie
the
Decree
.
But
then
it
was
further
argued
,
That
here
the
Meaning
of
the
Testatrix
could
not
be
such
as
the
Appellant
would
pretend
,
i.e.
that
she
meant
to
give
her
Estate
to
the
Respondent
and
others
,
only
in
case
the
Child
she
then
went
with
should
be
still
born
,
or
if
born
alive
,
should
dye
with
the
Mother
in
her
lying
in
,
for
these
Reasons
:
First
,
For
that
she
was
so
far
from
apprehending
that
the
Child
would
either
be
still
born
,
or
if
born
alive
,
would
dye
as
soon
as
her self
,
or
in
her
lying
in
,
that
she
expected
't
would
live
,
and
,
as
she
hoped
,
to
full
Age
,
for
she
takes
particular
Care
of
its
Education
;
and
earnestly
recommends
the
same
to
the
now
Appellant
,
and
others
;
prays
God
to
bless
it
,
and
not
forsake
it
;
and
hoped
that
all
the
Relations
on
the
Father's
side
would
,
for
the
Father's
sake
,
do
it
all
the
Services
it
should
stand
in
need
of
.
Then
taking
it
that
the
Testatrix
did
expect
the
Child
to
out-live
her
,
(
as
unquestionably
she
did
)
if
her
meaning
had
been
such
as
the
Appellant
hath
put
upon
her
words
,
the
way
to
have
it
sure
fixt
to
the
Child
,
and
then
to
the
Appellant
,
had
been
to
have
made
no
Will
at
all
;
because
if
the
Child
survived
the
Mother
but
a
day
,
or
an
hour
,
or
never
so
little
,
the
Law
had
vested
the
whole
,
first
in
the
Child
in
its
own
Right
,
and
upon
the
Child's
decease
,
in
the
Appellant
,
as
Administratrix
to
the
Child
.
Suppose
the
Child
had
outlived
the
Mother
for
a
Month
,
or
the
like
,
what
Interpretation
could
have
been
put
upon
this
Will
?
All
their
Arguments
will
hold
as
well
to
a
Month
,
Week
,
or
Days
surviving
of
the
Mother
,
as
to
this
of
two
Years
;
and
therefore
it
must
be
thus
construed
to
be
her
Intent
,
that
the
Devises
over
should
take
effect
,
if
the
Child
should
not
live
to
an
Age
of
Maturity
,
and
Power
of
Disposition
.
And
as
to
the
pretence
of
the
Child's
starving
in
the
mean
time
,
there
neither
is
,
nor
can
be
any
weight
in
that
,
for
the
Interest
and
Produce
of
the
whole
,
during
all
that
time
,
must
remain
and
be
to
and
for
the
benefit
of
the
Child
.
Wherefore
,
upon
the
whole
Matter
,
't
was
prayed
that
the
Decree
should
be
affirmed
;
and
it
was
affirmed
.
Philip
Jermin
and
Sarah
Vxor
ejus'
,
Plaintiffs
,
Versus
Mary
Orchard
Widow
,
Defendant
.
WRit
of
Error
to
Reverse
a
Judgment
of
Reversal
given
in
the
Exchequer
Chamber
,
upon
a
Judgment
given
in
the
Kings
Bench
for
the
Plaintiffs
,
in
an
Action
of
Trespass
for
the
mean
Profits
,
after
a
Recovery
in
Ejectment
,
and
Possession
had
thereupon
:
The
Case
was
this
upon
Record
;
The
Plaintiffs
declare
that
the
Defendant
,
1
Sept.
1672.
their
Close
,
&c.
vi
&
armis
,
&c.
did
break
,
and
upon
the
Possession
of
the
Plaintiff
did
enter
,
and
the
Plaintiffs
from
their
Possession
did
expel
and
remove
,
and
them
so
being
removed
and
expelled
for
a
long
time
,
viz.
from
the
said
1
Sept.
1672.
to
the
time
of
exhibiting
the
Bill
,
viz.
6
May
1685.
did
hold
out
from
the
same
,
by
which
they
lost
the
Prosits
thereof
,
&c.
Et
al'
Enormia
,
&c.
The
Defendant
by
Plea
takes
Issue
as
to
the
Force
,
and
Issue
thereon
;
and
as
to
part
of
the
Trespass
,
pleads
the
Statute
of
Limitations
;
and
as
to
the
residue
of
the
Trespass
,
pleads
that
Sir
William
Portman
made
a
Lease
to
one
Trowbridge
for
1000
years
,
and
by
mesne
Assignments
derives
a
Title
down
to
Thomas
Nicholas
;
and
that
he
in
his
Life
time
,
by
Indenture
,
assigned
to
the
Defendant
.
The
Plaintiffs
Reply
,
and
as
to
the
first
part
of
the
Plea
,
viz.
of
the
Statute
of
Limitations
,
they
demur
;
and
as
to
the
other
part
of
the
Plea
,
they
tender
a
Traverse
,
and
deny
that
Thomas
Nicholas
did
assign
the
Premisses
to
the
Defendant
.
The
Defendant
joyns
in
Demurrer
,
as
to
the
first
part
of
the
Plea
,
viz.
the
Statute
of
Limitations
:
And
as
to
the
other
part
,
she
takes
Issue
upon
the
Traverse
;
which
Issue
is
joyned
;
and
a
Venire
awarded
tam
ad
triand
'
the
two
Issues
,
quam
ad
inquirend'
de
dampnis
upon
the
Demurrer
.
The
Jury
find
that
Thomas
Nicholas
was
possessed
in
manner
as
the
Defendant
in
her
Plea
hath
alledged
,
and
that
he
did
make
Seal
,
and
as
his
Deed
,
deliver
the
Indenture
in
the
Plea
mentioned
;
which
said
Indenture
follows
in
these
words
;
and
so
set
forth
the
whole
;
in
which
,
after
a
Recital
of
the
Lease
,
and
a
Deducement
of
the
Title
down
,
are
these
words
,
viz.
The
said
Thomas
,
as
well
for
and
in
consideration
of
the
natural
Love
and
Affection
which
he
beareth
to
the
Defendant
his
Grand
child
,
as
for
other
good
Causes
and
Considerations
,
hath
granted
,
assigned
,
and
set
over
,
and
by
these
Presents
doth
grant
,
assign
,
and
set
over
unto
the
said
Mary
,
her
Executors
,
Administrators
,
and
Assigns
,
all
the
said
Cottage
,
Barn
,
and
Lands
,
and
all
and
singular
other
the
Premisses
herein
before
recited
or
mentioned
,
with
the
Appurtenances
to
the
same
belonging
or
appertaining
;
together
with
the
said
recited
Lease
,
and
all
Writings
and
Evidences
touching
the
Premisses
,
to
have
and
to
hold
the
said
Cottage
,
Barn
,
and
Premisses
,
and
every
part
thereof
,
with
the
Appurtenances
,
unto
the
said
Defendant
Mary
,
her
Executors
,
Administrators
and
Assigns
,
from
and
immediately
after
the
Death
and
Decease
of
the
said
Thomas
Nicholas
,
party
to
these
presents
,
and
Mary
his
Wife
unto
the
end
of
the
term
;
and
for
and
during
all
the
rest
and
residne
of
the
said
term
of
1000
Years
,
which
shall
be
therein
to
come
and
unexpired
,
by
and
under
the
yearly
Rents
,
Covenants
,
&c.
expressed
in
the
said
Original
Indenture
of
Lease
.
Then
the
Jury
leave
it
to
the
Court
,
whether
the
Deed
of
Assignment
be
good
in
Law
or
not
,
and
conclude
specially
,
if
the
Assignment
be
not
good
in
Law
,
then
they
find
for
the
Plaintiffs
,
and
Assess
,
Damages
,
50
l.
and
40
s.
Costs
,
and
thereupon
,
&c.
And
now
it
was
argued
for
the
Plaintiff
;
and
it
was
said
in
the
first
place
,
That
this
Case
was
extraordinary
,
that
tho'
the
Majority
of
the
Judges
in
Westminster-hall
were
of
Opinion
with
the
Plaintiffs
,
yet
they
were
forced
to
sue
this
Writ
,
they
had
the
four
Judges
of
the
King's
-
Bench
,
and
the
then
Mr.
Justice
Powell
,
and
the
then
Baron
Powell
concurring
with
the
King's
-
Bench
;
and
the
chief
Baron
Atkins
being
absent
,
the
other
Five
in
the
Exchequer-Chamber
reversed
the
Judgment
,
it
having
been
resolved
upon
the
Stat.
of
Eliz.
which
erects
that
Jurisdiction
,
That
the
Concurrence
of
six
are
not
necessary
to
reverse
,
but
only
that
six
must
be
present
to
make
a
Court
;
so
that
here
were
six
to
five
for
the
Plaintiff
,
and
yet
he
hath
lost
it
.
Then
it
was
argued
,
That
there
had
been
two
Things
insisted
on
below
,
one
was
the
finding
of
Damages
generally
,
and
the
other
was
as
to
the
Validity
of
the
Assignment
;
and
as
to
the
finding
,
it
was
said
,
That
the
Matter
of
the
Force
is
meer
Form
;
and
if
there
had
been
no
non
prosequi
,
the
same
could
not
make
an
Error
;
That
in
C.
B.
and
B.
R.
the
Issue
upon
the
vi
&
armis
,
&c.
is
seldom
or
never
taken
notice
of
,
no
Entry
is
made
of
it
upon
the
postea
at
all
,
unless
a
wounding
or
some
such
other
special
Matter
were
mixt
with
it
,
in
the
same
Issue
;
That
't
is
held
in
the
Case
of
Law
and
King
,
1
Saund
'
.
81.
If
nothing
be
answered
to
the
vi
&
armis
in
a
special
Plea
,
't
is
well
upon
a
general
Demurrer
,
and
the
7
Hen.
6.
13.
and
1
Hen.
7.19
.
are
plain
,
That
if
the
Party
have
the
special
Matter
which
he
pleads
,
found
for
him
,
the
vi
&
armis
shall
not
be
inquired
of
:
So
if
the
Defendant
have
Judgment
against
him
,
upon
Demurrer
to
the
special
Matter
pleaded
by
him
,
the
vi
&
armis
shall
never
be
tried
,
tho'
Issue
were
joyned
upon
it
,
but
the
Party
shall
be
fined
upon
the
Capiatur
,
&c.
without
any
Inquiry
:
So
is
the
King
and
Hopper
,
2
Cro.
599.
in
a
Scire
Facias
,
on
a
Recognizance
for
the
good
Behaviour
,
special
Matter
pleaded
,
held
,
That
the
Jury
need
not
inquire
about
the
vi
&
armis
,
if
such
Special
Matter
be
found
for
the
Defendant
;
much
more
is
it
so
,
in
case
it
be
found
for
the
Plaintiff
,
for
there
the
Act
which
is
found
imports
it
,
&c.
and
it
shall
be
intended
to
be
vi
&
armis
,
&c.
and
the
Book
of
Hen.
6.
is
full
in
it
,
no
need
of
any
Inquiry
in
such
Case
.
And
in
this
Point
both
the
Courts
having
concurred
,
the
Counsel
for
the
Defendant
did
not
contest
it
.
Then
as
to
the
other
Matter
of
the
Damages
,
which
should
have
been
inquired
of
upon
the
Demurrer
,
't
was
said
,
That
they
were
released
upon
Record
;
and
,
't
is
plain
,
that
the
Jury
have
found
nothing
upon
that
,
because
the
Conclusion
of
the
Verdict
doth
shew
,
that
they
inquired
and
found
Damages
only
as
to
the
concessit
or
assignavit
;
they
assess
Damages
for
nothing
else
;
for
if
the
Deed
did
pass
the
term
,
then
they
find
for
the
Plaintiff
,
and
assess
Damages
;
and
if
the
term
did
not
pass
,
they
find
the
Defendant
Not
guilty
,
&c.
the
Damages
cannot
therefore
be
for
both
;
for
if
they
had
found
any
for
the
Matter
demurred
upon
,
it
must
have
been
with
a
si
Contingat
;
here
't
is
not
so
.
And
tho'
the
Special
Fact
found
had
been
against
the
Plaintiff
,
it
might
have
been
for
him
upon
the
Demurrer
,
and
consequently
the
conditional
finding
of
the
Damages
here
,
can
never
be
as
to
that
.
Then
it
was
further
said
,
That
this
might
be
supplied
by
an
Inquest
of
Office
,
in
case
it
had
not
been
released
;
and
there
was
cited
Cheyney's
Case
,
Mich.
10
Jac.
1.
10
Rep.
118
,
119.
Writ
de
Valore
maritagij
,
Issue
on
the
Tenure
,
and
Verdict
for
the
Plaintiff
,
and
no
Value
found
of
the
Marriage
;
and
held
ill
,
because
they
say
,
an
Attaint
lyes
upon
it
,
that
being
the
Point
of
the
Writ
;
and
there
the
Rule
is
taken
generally
,
that
where
an
Attaint
lyes
upon
the
finding
,
the
omission
of
finding
such
Matter
cannot
be
supplied
by
a
new
Writ
of
Inquiry
,
because
such
Writ
of
Inquiry
would
prevent
the
Party
of
the
Benefit
of
his
Attaint
.
Then
the
Book
says
further
,
That
the
Rule
is
,
that
the
Court
ex
Officio
,
ought
to
inquire
of
such
thing
upon
which
no
Attaint
lyes
;
and
there
the
omission
of
its
being
found
in
the
Verdict
,
may
be
supplyed
by
a
Writ
of
Inquiry
of
Damages
;
as
in
the
case
of
a
Quare
Impedit
,
(
Poyner's
Case
,
Dyer
135.
)
Issue
found
for
the
Plaintiff
;
but
the
Jury
per
negligence
were
not
charged
to
inquire
of
the
four
Points
,
Plenarty
,
ex
cujus
Presentatione
,
si
Tempus
Semestre
,
and
the
yearly
Value
of
the
Church
;
there
a
Writ
of
Inquiry
lyes
de
novo
,
because
upon
them
no
Attaint
lyes
;
as
is
the
11
Hen.
4.80
.
because
as
to
them
't
is
only
an
Inquest
of
Office
;
and
the
Book
says
further
,
That
all
the
Cases
to
the
contrary
of
that
Rule
have
passed
,
sub
silentio
,
without
due
Advisement
,
and
were
against
the
Rule
of
Law
:
So
in
the
Case
of
Detinue
,
the
omission
of
the
Value
in
the
finding
is
fatal
,
because
an
Attaint
lyes
upon
a
false
Verdict
in
that
particular
:
So
that
by
the
Case
cited
,
it
may
be
only
an
Inquest
of
Office
as
to
part
,
which
is
the
present
Case
.
In
that
Case
of
a
Quare
Impedit
in
Dyer
,
is
cited
a
President
for
it
,
in
the
Old
Book
of
Entries
,
110.
which
is
a
false
Folio
,
for
't
is
in
93.
b.
and
there
is
the
very
Entry
of
the
Writ
,
setting
forth
a
Recuperavit
presentation'
virtute
Breais
de
Nisi
prius
,
Et
quia
nescitur
utrum
Ecclesia
plena
,
&c.
And
as
the
Case
is
in
Dyer
,
the
Plaintiff
did
there
(
as
the
Plaintiff
doth
here
)
release
his
Damages
,
and
had
a
Writ
to
the
Bishop
.
Now
in
Heydon's
Case
,
11
Rep.
6.
't
is
held
that
no
Attaint
lyes
upon
an
Inquest
of
Office
;
and
therefore
't
is
,
that
if
in
a
Trespass
against
divers
Defendants
,
some
plead
to
Issue
,
and
one
suffers
Judgment
to
go
by
Default
,
the
Damages
found
on
the
Issue
shall
be
chargeable
upon
all
,
and
the
Inquiry
of
Damages
on
the
Judgment
by
Default
shall
stay
,
because
no
Attaint
lyes
upon
that
.
'T
is
there
also
said
,
that
attaint
lyes
only
on
a
Verdict
on
the
mise
of
the
Parties
:
In
Trespass
,
three
Issues
,
Non
culp
'
to
one
part
,
Prescription
for
a
Common
to
another
part
,
and
the
Cattle
raptim
momorderunt
in
going
to
take
Common
to
another
,
&c.
The
Jury
find
one
for
the
Plaintiff
,
and
another
for
the
Defendant
,
and
inquire
not
of
the
third
Issue
at
all
;
the
Plaintiff
relinquishing
his
Damages
on
the
third
Issue
,
prays
Judgment
on
the
Verdict
for
the
first
,
and
held
that
this
prevented
all
Error
,
Mich.
13
Car.
1.
B.
R.
Brown
and
Stephens
,
adjudged
,
1
Rolls
Abridg.
786.
Then
as
to
the
Case
of
Vastuman
and
Row
,
11
Car.
1.
B.
R.
in
2
Rolls
Abridg.
722.
Trespass
for
an
Assault
,
Battery
,
and
taking
Corn
;
Special
Plea
to
the
Battery
,
and
Demurrer
thereupon
,
and
Non
culp
'
to
the
taking
the
Corn
;
the
Jury
find
no
Damages
upon
the
Demurrer
;
said
there
,
That
when
Judgment
is
for
the
Plaintiff
on
the
Demurrer
,
the
Damages
for
it
cannot
be
assessed
on
a
Writ
of
Inquiry
,
but
a
Venire
Facias
de
novo
for
the
whole
:
'T
was
now
argued
,
that
that
was
expresly
against
the
Rule
in
Cheyney's
Case
,
and
that
in
the
Case
in
Rolls
;
't
is
put
with
the
addition
of
a
dubitatur
.
But
if
that
be
Law
,
there
needs
no
Writ
of
Inquiry
in
this
Case
,
because
the
Damages
,
as
to
that
part
,
are
released
;
and
for
this
,
there
is
the
express
Case
of
Bentham
,
11
Rep.
56.
In
Annuity
,
the
Parties
descended
to
Issue
,
found
for
the
Plaintiff
as
to
the
Arrearages
,
but
no
Damages
and
Costs
;
't
was
held
an
imperfect
Verdict
,
and
that
it
could
not
be
supplyed
by
Writ
of
Inquiry
of
Damages
;
yet
the
Plaintiff
releasing
the
Damages
and
Costs
had
Judgment
for
him
;
and
a
Writ
of
Error
was
brought
,
and
the
Insufficiency
of
the
Verdict
was
assigned
for
Error
;
but
the
Judgment
was
affirmed
,
because
the
Plaintiff
had
released
it
,
Dyer
369
,
370.
Ejection'
custod'
terre
&
hered'
,
and
ill
,
because
intire
Damages
;
and
for
the
beres
no
Ejectment
lyes
;
yet
the
Damages
being
released
,
he
had
Judgment
for
the
Land
.
And
't
was
said
to
be
there
held
,
That
insufficient
finding
of
Damages
,
and
finding
of
none
,
are
all
one
.
If
a
Release
of
that
which
is
ill
found
,
will
help
,
where
such
thing
released
is
directly
in
Issue
;
much
more
it
should
do
so
,
where
the
thing
released
is
but
obliquely
inquired
of
,
and
was
not
put
in
Issue
to
the
Jury
;
and
then
't
was
repeated
what
was
said
before
,
that
the
Special
Conclusion
helps
and
prevents
the
General
Intendment
which
otherwise
would
be
had
,
as
to
the
Damages
being
intire
,
and
therefore
't
was
insisted
that
this
made
no
Error
,
but
the
Judgment
in
the
Kings
Bench
stood
good
,
notwithstanding
this
Exception
.
Then
the
Counfel
for
the
Defendant
did
likewise
wave
this
,
as
not
being
the
Cause
of
the
Reversal
in
the
Exchequer
Chamber
.
Wherefore
it
was
argued
for
the
Plaintiff
,
That
this
Assignment
or
Grant
found
in
the
Verdict
is
void
,
and
passed
nothing
;
for
that
either
it
passed
the
whole
Term
,
or
no
part
of
it
,
and
that
immediately
;
that
this
must
be
agreed
.
Then
't
was
said
,
that
it
could
not
pass
the
whole
;
for
so
to
do
,
was
contrary
to
the
Intention
of
all
the
Parties
,
to
the
good
will
of
the
Grantor
,
and
even
to
the
hopes
of
the
Grantee
;
for
't
is
plain
from
the
whole
Contexture
of
the
Deed
,
that
the
Defendant
was
to
have
nothing
in
the
Term
till
the
Death
of
the
old
Man
and
his
Wife
:
It
was
undoubtedly
the
meaning
and
design
of
all
the
Persons
concerned
,
that
the
Defendant
only
should
have
the
Residue
after
his
decease
.
Then
that
the
Law
will
not
permit
this
,
is
plain
from
the
Books
,
for
that
't
is
uncertain
,
how
much
,
or
if
any
of
the
term
will
remain
,
or
be
in
being
,
at
the
death
of
the
Grantor
or
Assignor
;
that
the
Law
rejects
such
a
small
or
remote
Possibility
;
that
Man's
Life
in
the
Eye
of
the
Law
is
of
so
great
a
regard
,
that
't
is
presumed
to
be
of
a
longer
duration
than
the
longest
term
of
years
:
That
this
is
an
old
Maxim
,
upon
which
Thousands
of
Properties
do
depend
,
that
tho'
some
Mens
reason
may
not
approve
it
,
't
is
not
to
be
altered
but
by
the
Legislature
;
that
the
Law
first
prefers
Inheritances
,
or
Estates
descendible
;
then
Freeholds
,
or
Estates
for
Life
;
then
Chattels
real
or
Terms
for
Years
:
The
Law
values
and
regards
,
what
a
Man
and
his
Heirs
shall
enjoy
,
before
that
which
he
himself
only
can
enjoy
;
and
what
he
himself
may
enjoy
during
his
Life
,
before
what
he
may
have
only
for
a
certain
limited
time
,
the
which
he
may
by
any
supposal
survive
:
These
are
known
Truths
.
32
Assis
.
6.
Plowd
,
521.
If
a
Man
be
possessed
of
a
Term
for
100
years
,
and
grants
so
many
of
them
as
shall
remain
at
the
time
of
his
death
,
this
is
void
for
the
uncertainty
;
otherwise
if
it
be
by
Devise
,
because
there
nothing
takes
effect
till
death
,
and
then
't
is
certain
how
many
years
he
is
to
enjoy
it
.
'T
is
true
,
a
Lease
of
Land
for
Forty
years
,
to
commence
after
a
Man's
death
,
is
good
,
because
't
is
certain
that
the
Land
shall
be
enjoyed
for
Forty
years
,
but
here
non
constat
in
certain
,
that
this
Deed
could
take
effect
for
a
year
,
an
hour
,
or
at
all
;
Bro.
tit
.
Lease
66.
Plowd.
520.
A
Man
possessed
of
a
Term
,
grants
it
to
another
during
Life
,
't
is
as
much
as
during
the
whole
Term
(
tho'
never
so
long
)
because
Life
is
presumed
longer
;
so
if
he
grant
all
the
Term
that
shall
remain
after
his
Death
,
't
is
all
void
,
because
he
reserves
to
himself
the
whole
;
for
a
greater
includes
the
less
;
and
for
Life
is
the
longest
of
the
two
:
These
things
are
not
to
be
disputed
:
If
both
Premisses
and
Habendum
had
had
this
Limitation
,
the
other
side
must
have
agreed
it
to
have
been
void
ab
origine
,
and
nothing
to
have
passed
by
this
Deed.
But
then
the
Objection
is
,
That
the
whole
Term
passes
by
the
Granting
Part
,
and
then
the
Habendum
is
void
,
because
't
is
repugnant
.
To
this
it
was
answered
.
That
in
a
Deed
each
part
hath
its
proper
Province
:
The
Office
of
the
Premisses
is
to
express
the
certainty
of
the
thing
granted
;
the
Habendum
is
to
express
the
quantity
and
limitation
of
the
Estate
,
1
Inst.
6.
Plowd.
196.
Lofield's
Case
,
10
Rep.
107.
And
according
to
Littleton's
Text
,
Sect.
370.
all
the
parts
of
the
Indenture
are
but
one
Deed
in
Law
:
from
whence
it
was
inferred
,
That
the
Habendum
is
never
to
be
rejected
,
but
when
there
is
a
manifest
,
express
,
and
particular
Contradiction
;
never
when
the
Habendum
doth
apparently
shew
the
Parties
Intention
.
Here
the
Lessee
for
years
grants
totum
Cottagium
suum
,
&c.
The
Grantee
or
Assignee
(
if
there
be
no
Habendum
)
hath
but
an
Estate
at
will
;
whereas
if
he
grants
all
his
Estate
and
Interest
in
such
a
Cottage
,
there
the
whole
Term
passeth
.
This
is
the
express
Opinion
in
Griffin's
Case
,
2
Leon.
78.
Case
102.
and
there
said
to
have
been
lately
so
adjudged
in
Wynnibank's
Case
in
B.
R.
Now
here
's
nothing
in
the
Premisses
,
but
what
is
general
,
not
the
whole
Estate
granted
;
nor
is
it
said
for
how
long
time
he
shall
enjoy
it
;
and
therefore
the
Habendum
cannot
be
said
to
be
repugnant
or
contradictory
,
because
the
first
is
not
express
.
In
Stukely's
Case
,
Hob.
170
,
171.
upon
the
Case
of
Grants
and
Exceptions
,
is
the
learning
of
Habendums
laid
down
,
if
it
had
been
a
Grant
of
all
his
Estate
,
Habendum
after
his
Death
,
there
the
Habendum
shall
not
frustrate
the
Grant
;
but
if
the
Premisses
give
no
certain
or
express
Estate
,
there
you
may
alter
and
abridge
,
nay
,
you
may
utterly
frustrate
it
by
the
Habendum
;
these
are
the
words
of
the
Book
:
Then
was
cited
2
Rolls
abr.
66.
and
1
Inst.
48.
b.
and
the
same
Case
of
Hodge
and
Crosse
,
in
3
Cro.
254
,
255
,
where
't
was
ruled
,
That
the
Habendum
,
tho'
void
,
shall
controul
the
implied
Limitation
in
the
Premisses
;
't
was
a
Feoffment
of
Lands
in
London
,
Habend
'
to
the
Feoffee
and
his
Heirs
after
the
Death
of
the
Feoffer
:
And
't
was
argued
in
that
Case
,
That
the
Habend
'
was
void
,
but
resolved
,
That
nothing
passes
,
because
it
appears
to
be
the
Intent
of
the
Party
,
that
nothing
should
pass
but
in
futuro
;
for
the
Premisses
could
pass
nothing
but
by
Implication
,
and
that
was
nothing
at
all
,
because
the
Intent
was
to
pass
nothing
presently
;
and
tho'
there
were
Livery
made
,
yet
that
Livery
could
operate
only
secundum
formam
Charte
,
and
therefore
the
whole
was
void
;
the
reason
was
,
because
the
first
was
General
,
tho'
the
Law
would
have
given
a
particular
Estate
for
Life
by
the
Livery
;
yet
because
the
Party
gave
none
expresly
by
particular
Words
,
the
Habendum
was
not
to
be
rejected
;
many
of
the
Rules
in
Buckler
and
Harvey's
Case
,
2
Rep.
55.
are
applicable
to
this
:
And
altho'
there
be
a
Difference
,
where
the
Deed
passes
the
Estate
,
and
where
Livery
or
other
Ceremony
is
requisite
,
as
to
many
purposes
;
yet
still
the
Distinction
is
,
where
the
Premisses
do
not
give
all
the
Parties
whole
Interest
,
or
some
other
particular
Estate
,
but
is
General
,
there
the
Habendum
shall
not
be
rejected
as
repugnant
,
2
Rep.
23
,
24.
Baldwin's
Case
.
As
to
the
Words
,
together
with
the
said
recited
Lease
,
that
can
only
mean
the
Indenture
or
Writing
;
for
the
Adjective
recited
,
implies
the
Intent
to
be
such
:
Recited
signifies
only
a
Rehearsal
or
Repetition
of
Words
,
spoken
or
written
before
;
and
so
is
Recitare
Testamentum
,
Calvin's
Lexicon
,
and
't
is
joined
with
the
other
Writings
and
Evidences
concerning
the
Premisses
,
and
doubtful
Words
are
to
be
construed
according
to
the
Nature
of
the
things
expressed
and
mentioned
with
them
:
Lease
in
it self
imports
only
the
Conveyance
or
Instrument
of
Conveyance
,
not
the
Interest
in
the
thing
conveyed
;
if
by
Writing
,
't
is
called
a
Deed
or
Lease
in
Writing
,
if
otherwise
,
a
Lease
Parol
:
Thus
is
it
explained
in
Blunt's
Law
Dictionary
,
and
in
Knight's
Case
,
5
Rep.
55.
where
all
the
Parts
of
it
are
described
:
A
Man
may
give
away
his
Lease
,
and
yet
retain
his
Estate
or
Term
,
he
may
deposite
it
as
a
Pawn
or
Pledge
;
and
the
Party
in
whose
Custody
't
is
so
lodged
,
may
maintain
Trover
or
Trespass
,
if
it
be
taken
from
him
,
nay
,
against
the
Lessee
himself
,
the
Owner
of
the
Lands
,
if
he
takes
it
before
the
Performance
of
the
Condition
;
so
that
these
Words
cannot
alter
the
Case
;
this
is
not
the
Case
of
a
Will
,
but
of
a
Deed
Executed
in
the
Life-time
of
the
Party
;
the
Rule
,
and
the
Reason
of
the
Rule
about
Exceptions
in
Grants
,
will
hold
to
this
;
where
the
Grant
is
General
,
the
Exception
cannot
be
rejected
as
void
,
on
pretence
of
Repugnancy
:
The
Common
Law
doth
not
care
to
raise
,
or
make
Estates
by
Implication
where
the
same
Person
hath
an
express
one
,
so
is
Vaughan
,
261
,
262.
therefore
there
's
no
Reason
in
this
Case
,
to
construe
the
whole
Term
to
pass
by
Implication
in
the
Premisses
,
a
particular
Estate
being
limited
in
the
Habend
'
,
and
that
not
being
good
,
all
is
void
:
Here
's
no
Purchaser
,
Creditor
,
or
Heir
in
the
Case
,
but
't
is
a
meer
voluntary
Act
to
the
Defendant
.
Then
was
cited
1
Cro.
376.
2
Bulstr.
272.
of
a
Copy-holders
Surrender
,
Habend'
a
tempore
mortis
,
and
held
void
;
wherefore
upon
the
whole
,
it
was
insisted
,
That
by
the
Premisses
,
nothing
passed
but
an
Estate
at
Will
,
That
the
Habend
'
giving
an
Estate
or
Interest
,
which
was
not
allowable
in
the
Law
,
the
Deed
was
void
,
and
passed
nothing
;
and
therefore
the
Verdict
was
for
the
Plaintiff
,
and
the
Judgment
in
B.
R.
was
good
,
and
accordingly
it
was
prayed
,
That
the
Reversal
of
that
Judgment
might
be
reversed
.
On
the
other
side
,
it
was
argued
,
That
to
construe
this
to
be
void
,
was
contrary
to
the
Intention
of
both
the
Parties
;
That
now
the
Grantor
and
his
Wife
were
dead
,
and
there
was
no
dispute
about
their
Estates
:
That
the
Premisses
here
passed
the
whole
,
't
is
to
her
and
her
Executors
and
Assigns
,
't
is
all
that
Cottage
;
't
is
together
with
all
his
Deeds
concerning
it
,
the
Deeds
are
concomitant
with
the
Estate
,
and
when
he
grants
the
Deeds
,
he
certainly
did
design
to
pass
his
Interest
;
he
could
never
mean
an
Estate
at
Will
,
when
he
names
the
Executors
,
&c.
Then
was
cited
the
Case
of
Lilley
and
Witney
,
Dyer
272.
pl.
30.
Grant
of
all
his
Interest
,
Estate
,
and
Term
,
Habend
'
after
his
Death
,
the
Habend
'
is
void
,
Plowd.
520.
1
Bulstr.
191.
Bro.
Grants
,
154.
Leases
66.
The
Presumption
that
a
Man
can
out-live
a
1000
Years
,
is
a
weak
Pretence
,
and
void
of
Reason
:
Equity
is
a
part
of
the
Law
of
the
Land
;
and
here
to
judge
this
void
,
is
unconscionable
and
unreasonable
.
Then
was
cited
1
Anderson
,
284
,
290.
Grant
of
a
Reversion
Habend
'
after
his
Death
,
shall
vest
immediately
;
the
Lease
imports
and
carries
the
Estate
,
Peto
and
Pemberton
,
1
Cro.
101.
Plea
,
That
he
had
surrendred
his
Lease
,
which
shews
,
that
it
carried
the
Interest
,
they
are
Synonimous
,
Bro.
tit
.
Grant
155.
A
Man
grants
omnia
firma
sua
,
shall
pass
his
Term
:
There
's
no
prescribed
Form
for
passing
a
Chattel
before
the
Stat.
of
Frauds
.
A
Man
possessed
of
a
Term
,
grants
it
to
another
and
his
Heirs
,
it
passeth
the
whole
,
so
to
a
Man
for
Life
;
it
shall
pass
the
whole
Interest
,
and
shall
go
to
his
Executor
,
Plowd.
424.
3
Cro.
534.
If
the
Habend
'
were
out
of
the
Case
,
this
would
pass
the
whole
,
and
if
so
,
the
Habend
'
is
void
;
't
is
an
old
Rule
and
a
good
one
,
Vt
res
magis
valeat
quam
pereat
:
The
Lord
Chief
Baron
Hale
seem'd
of
that
Opinion
in
the
Case
of
Smith
and
Tutchett
,
in
scacc
'
(
but
that
proved
a
Mistake
,
for
that
Case
was
different
,
and
was
ended
by
Consent
,
as
appeared
by
a
Rule
,
Die
Mercurij
13.
Die
Maij
,
Term'
Pasch.
26.
Car.
2.
after
Hale
was
removed
into
the
Kings
Bench.
)
Then
't
was
said
,
that
there
could
be
no
ill
Consequence
in
adjudging
this
to
be
a
good
Assignment
;
the
like
case
was
never
probable
to
happen
again
,
that
here
had
been
a
Diversity
of
Opinions
below
Stairs
,
that
Equity
was
with
the
Defendant
,
and
therefore
't
was
prayed
,
That
the
Reversal
might
be
affirmed
;
and
it
was
affirmed
accordingly
.
Bennett
Swayne
,
Esq
;
Petitioner
,
Versus
William
Fawkener
and
John
Lane
,
Executors
of
Benjamin
Middleton
,
Defendants
.
WRit
of
Error
to
Reverse
a
Judgment
in
the
Kings
Bench
given
for
Benjamin
in
an
Action
against
Swayne
for
20
l.
received
by
him
of
the
Profits
of
a
Share
in
the
New-River
,
&c.
The
Case
was
thus
;
Simon
Middleton
Esq
;
being
seized
in
Fee
of
Seventeen
Thirty-six
Parts
of
the
King's
Moiety
in
the
New-River
Water
,
and
having
Issue
eight
Children
,
viz.
Hugh
,
Sarah
,
Hannah
,
and
Anne
,
by
his
first
Wife
;
and
Elizabeth
,
Rebecca
,
Benjamin
,
and
Hezekiah
by
his
second
Wife
,
made
his
last
Will
;
and
thereby
amongst
other
things
,
to
the
intent
that
all
his
younger
Children
might
be
provided
for
,
he
devised
Seven
Thirty-sixth
Parts
or
Shares
of
the
King's
Moiety
aforesaid
amongst
them
,
in
manner
following
;
viz.
to
Sarah
,
Hannah
,
and
Anne
,
to
each
of
them
and
their
Heirs
,
one
full
Thirty-sixth
Part
or
Share
of
the
said
King's
Moiety
,
free
and
discharged
from
the
Fee
Farm
Rent
payable
to
the
King's
Majesty
,
and
of
100
l.
per
Annum
payable
to
Henry
Middleton
deceased
,
and
his
Heirs
,
and
from
all
other
Payments
and
Charges
whatsoever
.
And
also
to
Elizabeth
,
Rebecca
,
and
Benjamin
,
and
to
each
of
them
,
her
,
and
his
Heirs
,
one
full
Thirty-sixth
Part
or
Share
of
the
said
New-River
Water
of
the
King's
Moiety
;
only
they
,
and
each
of
them
proportionably
to
stand
charged
with
the
payment
of
the
Fee-Farm
Rent
due
and
payable
to
the
King's
Majesty
,
and
with
the
100
l.
per
Annum
to
Henry
Middleton
and
his
Heirs
,
and
with
no
other
Payment
or
Charge
whatsoever
;
and
to
his
Son
Hezekiah
,
and
his
Heirs
,
one
full
Thirty-sixth
Part
or
Share
of
the
said
New-River
Water
,
the
said
Share
being
part
of
the
King's
Moiety
,
to
hold
to
him
and
his
Heirs
,
with
the
Rents
,
Issues
,
and
Profits
thereof
,
from
and
immediately
after
his
Decease
,
only
proportionably
to
stand
charged
with
the
Payments
of
the
Fee-Farm
Rent
,
due
and
payable
to
his
Majesty
,
and
with
the
aforesaid
100
l.
per
Annum
to
the
said
Henry
Middleton
,
and
his
Heirs
;
and
also
charged
with
150
l.
more
towards
binding
out
of
his
Brother
Benjamin
an
Apprentice
,
when
and
so
soon
,
as
he
shall
attain
to
the
Age
of
Sixteen
Years
,
but
with
no
other
Charge
or
Payment
whatsoever
:
And
further
devises
,
That
in
case
any
of
his
said
younger
Children
,
Sons
or
Daughters
,
shall
happen
to
die
before
he
,
she
,
or
they
should
attain
the
full
Age
of
Twenty
One
Years
,
or
be
married
,
then
and
in
either
of
the
said
Cases
,
he
did
will
and
devise
that
Part
or
Share
,
with
the
Profits
thereof
,
of
him
,
her
,
or
them
,
so
deceasing
as
aforesaid
,
to
the
Survivor
or
Survivors
of
all
his
aforesaid
younger
Children
,
Share
and
Share
alike
,
chargable
nevertheless
with
the
several
Payments
as
aforesaid
,
but
liable
to
no
other
Charge
or
Payment
whatsoever
:
And
all
the
rest
of
his
Shares
in
the
said
New-River
Water
,
he
gives
to
his
eldest
Son
Hugh
and
his
Heirs
,
so
that
he
permit
the
rest
of
the
Shares
to
be
enjoyed
according
to
his
Will
,
and
discharge
the
Fee-Farm
Rent
,
with
which
they
are
charged
:
And
in
case
he
shall
not
do
so
,
he
gives
the
said
Shares
,
he
should
otherwise
enjoy
by
the
Will
,
to
and
amongst
all
other
his
Children
,
and
their
Heirs
,
equally
to
be
divided
amongst
them
.
Simon
Middl●ton
died
seized
the
20
July
,
1679.
and
after
his
death
,
Rebecca
having
attained
her
Age
of
21
Years
,
died
.
Hezekiah
after
seisin
of
his
Share
,
died
under
21
Years
,
and
unmarried
.
Anne
,
one
of
the
Five
younger
Children
(
which
Five
claimed
the
said
Hezekiah's
Share
)
by
Lease
and
Release
,
settles
the
fifth
part
of
the
Share
,
late
her
Brother
Hezekiah's
,
upon
her self
and
the
Plaintiff
Bennet
Swayne
(
whom
she
afterwards
married
)
and
after
to
the
Children
that
should
be
between
them
,
Remainder
to
the
right
Heirs
of
the
Survivor
of
them
two
.
Anne
died
without
Issue
;
and
Bennet
Swayne
after
her
death
received
the
Profits
of
that
fifth
part
of
Hezekiah's
Share
,
to
the
value
of
20
l.
That
Benjamin
Middleton
was
the
only
Brother
of
the
whole
Blood
,
and
Heir
of
Hezekiah
,
Et
si
,
&c.
Upon
the
arguing
of
this
special
Verdict
,
the
Court
below
was
of
Opinion
,
That
Benjamin
was
intituled
,
to
Anne's
Share
of
Hezekiah's
Part
,
as
he
was
Brother
and
Heir
of
Hezekiah
,
viz.
That
by
the
Will
,
the
Fee-simple
and
Inheritance
of
a
Thirty-sixth
Part
or
Share
of
the
New-River
Water
was
given
to
,
and
vested
in
each
of
the
youger
Children
;
and
that
on
the
Death
of
Hezekiah
,
one
of
the
younger
Children
,
unmarried
,
under
One
and
Twenty
Years
of
Age
,
by
the
Clause
(
whereby
the
Shares
of
the
youger
Children
dying
before
Twenty
One
,
and
unmarried
,
are
given
to
the
surviving
Children
,
Share
and
Share
alike
)
the
five
Survivors
became
Tenants
in
Common
,
and
each
was
seized
of
a
fifth
part
only
for
Life
,
and
not
in
Fee
:
That
the
Reversion
of
Hezekiah's
Share
,
expectant
on
the
deaths
of
the
younger
Children
,
descended
to
the
said
Benjamin
his
Brother
and
Heir
;
and
that
he
on
the
death
of
Anne
,
ought
to
have
enjoyed
that
Fifth-part
in
Possession
;
and
therefore
the
Profits
of
it
received
by
Swayne
,
were
due
to
Benjamin
,
and
Judgment
accordingly
given
there
for
Benjamin
.
And
now
it
was
argued
,
That
this
Judgment
was
erroneous
,
for
that
by
Virtue
of
the
said
Devise
,
the
said
Anne
had
an
Inheritance
in
her
part
of
Hezekiah's
Share
,
for
these
Reasons
,
1.
It
is
well
known
and
agreed
,
That
a
Part
or
Share
in
the
New-River
is
an
Inheritance
,
and
therefore
the
Devise
of
all
that
Part
or
Share
to
any
Person
,
is
a
Devise
of
that
Part
and
Share
to
such
Person
and
his
Heirs
;
and
is
as
much
,
as
if
a
Person
being
seized
in
Fee
of
Lands
,
should
say
in
his
Will
,
he
devises
all
his
Estate
in
those
Lands
to
J.
S.
it
could
be
no
question
,
but
such
a
Devise
would
convey
the
said
Lands
to
such
Devisee
and
his
Heirs
.
2.
The
Share
of
Hezekiah
was
given
to
him
and
his
Heirs
,
proportionably
charged
with
the
payment
of
the
Fee-Farm
Rent
to
his
Majesty
,
and
with
100
l.
per
Annum
to
Henry
M.
and
his
Heirs
,
and
also
with
150
l.
to
his
Brother
Benjamin
;
and
being
thus
charged
,
upon
his
dying
before
Age
or
Marriage
,
his
Share
,
with
the
Profits
thereof
thus
charged
,
is
given
to
his
younger
Brother
and
Sisters
,
the
Survivor
and
Survivors
of
them
,
Share
and
Share
alike
.
Then
't
is
observable
,
that
the
Fee-Farm
Rent
,
payable
to
the
King
,
his
Heirs
and
Successors
,
is
500
l.
per
Annum
;
upon
which
account
't
would
be
very
difficult
to
conceive
,
that
the
Testator
,
by
this
Devise
of
the
deceased's
Part
,
to
the
Survivors
,
Share
and
Share
alike
,
did
intend
to
such
Survivors
only
an
Estate
for
Life
,
when
at
the
same
time
he
subjects
and
charges
it
to
and
with
the
proportionable
payment
of
the
said
yearly
Fee-Farm
,
and
the
100
l.
to
H.
M.
and
his
Heirs
,
which
are
Rent-Charges
in
Fee
,
and
cannot
reasonably
be
understood
to
be
charged
on
Estates
given
barely
for
Life
.
Besides
,
The
Point
here
is
upon
the
Construction
of
a
Will
,
and
the
Testators
true
Intent
and
Meaning
,
in
any
part
that
is
obscure
,
ought
to
be
collected
out
of
any
other
part
or
words
of
the
Will
that
may
explain
it
:
Now
,
it
being
plain
,
that
Hezekiah's
Part
was
a
Fee-simple
,
and
thus
charged
,
it
seems
to
be
as
plain
,
that
the
very
Inheritance
of
that
Part
,
should
upon
his
death
go
and
remain
to
the
Survivors
,
Share
and
Share
alike
;
that
is
to
say
,
That
they
should
be
Tenants
in
Common
in
Fee-simple
of
that
Part
,
the
same
being
thus
chargable
with
the
two
Rents
,
and
with
the
150
l.
to
Benjamin
;
for
otherwise
this
Devise
over
(
which
was
designed
in
their
favour
and
for
their
benefit
)
might
have
turned
to
some
of
their
Losses
and
Prejudice
,
for
they
might
have
paid
the
150
l.
to
Benjamin
,
and
have
died
,
before
they
were
re-imbursed
out
of
Hezekiah's
Share
,
had
the
same
been
only
an
Estate
for
Life
;
and
it
cannot
easily
be
supposed
,
that
he
intended
his
youngest
Children
by
the
second
Wife
,
should
have
a
better
Estate
in
his
Shares
of
the
New-River
Water
,
devised
as
aforesaid
,
then
the
younger
Children
by
the
first
Wife
had
,
but
that
their
Shares
in
it
should
be
equal
;
but
by
this
Construction
,
Benjamin
by
the
second
Venter
must
carry
away
Anne's
Share
from
her
Sisters
and
Brother
of
the
first
Venter
;
here
's
no
need
of
the
common
Care
in
construing
Wills
,
not
to
disinherit
an
Heir
by
general
words
;
for
Hugh
is
disinherited
by
this
Will
,
whether
this
surviving
Interest
be
a
Fee
,
or
for
Life
:
The
Intention
here
was
to
make
an
equal
Provision
for
all
the
younger
Children
;
the
Part
and
Share
of
the
Person
dying
,
is
the
Inheritance
in
the
Part
and
Share
of
the
Person
dying
in
the
New-River
Water
.
The
three
Sisters
were
to
have
their
Shares
discharged
of
the
Fee-Farm
Bent
;
but
if
this
be
only
an
Estate
for
Life
,
then
those
who
were
designed
to
have
the
least
benefit
by
the
Will
,
are
to
have
the
greatest
,
for
they
are
Heirs
to
Hezekiah
;
whereas
the
Children
by
the
first
Venter
seem
to
be
most
favoured
by
the
Will
,
because
they
are
to
have
their
Bequests
free
from
those
Incumbrances
.
The
Testator
recites
his
own
Scisin
in
Fee
of
so
many
Parts
and
Shares
,
and
then
devises
those
Parts
in
Fee
,
how
can
this
Clause
of
Limitation
to
Survivors
be
construed
to
mean
otherwise
,
then
that
the
whole
Fee
of
that
proportion
should
survive
.
The
Cases
cited
in
Rolls
,
on
the
other
side
,
are
only
Devises
of
the
Land
,
and
not
of
his
Share
.
Then
't
was
said
,
That
here
was
no
Tenancy
in
Common
;
that
't
is
true
,
equally
divided
,
and
equally
to
be
divided
,
make
a
Tenancy
in
Common
;
but
't
is
upon
the
account
of
the
word
divided
;
that
to
two
equally
,
will
not
be
so
construed
,
1
A●d
.
29.
and
if
the
words
equally
will
not
,
why
should
Share
and
Share
alike
;
these
words
do
not
shew
any
partition
of
the
Estate
in
Fact
,
nor
in
the
Intention
of
the
Testator
;
and
one
of
these
is
necessary
to
prevent
a
Survivorship
.
Wherefore
,
upon
the
whole
it
was
prayed
,
That
the
Judgment
should
be
Reversed
.
On
the
other
side
it
was
argued
with
the
Judgment
,
That
the
same
was
Legal
,
and
ought
not
to
be
Reversed
;
for
that
as
to
the
last
thing
stirred
,
it
must
be
a
Tenancy
in
Common
;
the
words
Share
and
Share
alike
imply
a
Division
,
or
Partition
in
esse
,
or
in
future
,
and
it
hath
always
been
so
construed
.
The
distinction
between
divided
,
and
to
be
divided
,
hath
been
long
since
Exploded
,
as
importing
no
difference
.
Then
it
was
argued
,
That
here
was
only
an
Estate
for
Life
given
by
this
Clause
to
the
Survivors
;
that
a
Devise
of
the
Share
is
the
same
with
the
Devise
of
the
Land
;
that
the
Share
doth
not
signifie
the
Estate
or
Interest
,
but
the
Quantity
or
Proportion
of
the
Thing
;
here
are
no
words
to
vest
the
Inheritance
in
the
Survivors
;
there
are
proper
words
to
give
an
Inheritance
to
the
Children
;
and
there
are
no
such
proper
words
used
to
divest
it
out
of
them
,
and
to
give
it
to
the
Survivors
upon
the
decease
of
any
one
of
them
under
Age
and
Unmarried
.
The
Share
or
Part
can
only
be
the
Thing
it self
,
not
the
Estate
in
the
Thing
;
and
't
is
all
consistent
,
if
it
be
adjudged
an
Estate
for
Life
.
Besides
,
In
the
last
Clause
,
when
he
enjoyns
the
Heir
to
permit
the
Devisees
to
enjoy
their
Interests
,
and
in
case
he
do
not
discharge
the
Fee-farm
Rent
,
he
gives
the
rest
of
his
Shares
to
and
amongst
all
other
of
his
Children
and
their
Heirs
,
equally
to
be
divided
among
them
.
The
adding
of
the
word
Heirs
in
this
Clause
,
and
omitting
it
in
the
former
,
shews
the
Testator
to
have
a
different
meaning
in
the
first
,
from
what
he
had
in
the
last
.
Then
were
cited
several
Cases
to
prove
that
totam
illam
partem
carried
only
the
Thing
devised
,
not
the
Interest
which
the
Devisor
had
therein
,
3
Leon.
180
,
181.
3
Cro.
52.
2
Leon.
156
,
56.
and
1
Rolls
Abridg.
tit
.
Estate
,
835
,
836.
1
Cro.
356.
Latch
.
40.
and
as
to
the
150
l.
appointed
to
be
paid
for
to
bind
Benjamin
Apprentice
,
't
was
said
,
That
the
same
was
to
Issue
out
of
the
Rents
and
Profits
.
And
therefore
upon
the
whole
,
it
was
prayed
,
That
the
Judgment
might
be
affirmed
;
and
it
was
affirmed
accordingly
.
Dominus
Rex
,
Versus
Episcop'
Cestr'
,
and
Richard
Pierse
Esq
;
WRit
of
Error
upon
a
Judgment
in
a
Quare
Impedit
in
C.
B.
given
for
the
King
,
and
affirmed
in
B.
R.
The
Case
upon
the
Record
was
to
this
effect
;
Mr.
Attorney
General
declares
,
That
Queen
Elizabeth
was
seized
of
the
Advowson
of
the
Church
of
Bedall
,
ut
de
uno
grosso
per
se
,
ut
de
feodo
&
jure
,
in
jure
corone
sue
Anglie
;
and
being
so
seized
,
did
such
a
Day
in
the
Twelfth
Year
of
her
Reign
,
present
to
the
said
Church
then
vacant
,
John
Tymms
,
as
by
the
Inrollment
of
,
&c.
appears
,
that
he
was
instituted
and
inducted
;
that
Queen
Elizabeth
died
seized
of
such
her
Estate
of
and
in
the
Advowson
aforesaid
;
that
the
same
descended
to
Jac.
1.
per
quod
he
was
seized
of
the
Advowson
of
the
said
Church
,
ut
de
uno
grosso
,
&c.
That
the
Church
became
void
by
the
death
of
Tymms
,
and
that
King
presented
Dr.
Wilson
;
that
he
was
admitted
,
instituted
,
and
inducted
;
that
King
Jac.
1.
died
seized
of
such
his
Estate
in
the
said
Advowson
,
and
the
same
descended
to
Car
1.
and
he
became
seized
;
and
the
Church
was
again
void
by
the
death
of
the
then
Incumbent
,
and
Car.
1.
presented
Dr.
Wickham
;
that
Dr.
Wickham
died
;
that
thereupon
one
John
Pierse
,
not
having
any
Right
to
present
to
the
said
Church
,
sed
usurpando
super
dict'
nuper
Regem
Car.
1.
did
present
one
Metcalfe
,
who
was
inducted
;
that
Car.
1.
died
seized
;
that
the
Advowson
descended
to
Car.
2.
that
the
Church
became
void
by
the
death
of
Metcalfe
;
that
Car.
2.
presented
Samways
,
who
was
inducted
;
that
Car.
2.
died
seized
,
and
the
same
descended
to
Jac.
2.
who
became
seized
ut
de
uno
grosso
,
&c.
who
being
so
seized
,
de
regimine
hujus
regni
Anglie
se
dimisit
,
by
which
the
said
Advowson
came
to
the
present
King
and
Queen
,
and
they
were
,
and
are
now
seized
of
it
,
ut
de
uno
grosso
,
&c.
That
the
Church
became
void
by
the
death
of
Samways
,
and
it
belongs
to
the
King
and
Queen
to
present
a
fit
Person
;
but
the
Defendants
hinder
them
ad
dampnum
,
&c.
The
Bishop
pleads
that
he
claims
nothing
in
the
Advowson
,
but
as
Ordinary
,
&c.
The
other
Defendant
,
Richard
Pierse
,
pleads
,
That
the
King
occasione
premissor'
ipsum
pred'
Richardum
impetere
seu
occasionare
non
debet
,
quia
dicit
,
quod
bene
&
verum
est
,
quod
Car.
1.
devenit
&
fuit
seisitus
of
the
Advowson
aforesaid
,
ut
de
uno
grosso
per
se
ut
de
feodo
&
jure
modo
&
forma
pred'
in
narr'
pred'
specificat'
,
and
did
present
Wickham
his
Clerk
,
who
was
inducted
.
But
he
says
further
,
That
the
Church
being
so
full
of
the
Incumbent
,
and
Car.
1.
so
seized
as
aforesaid
,
the
said
Car.
1.
by
his
Letters
Patents
,
&c.
bearing
date
at
Canbury
,
19
Julij
,
anno
regni
sui
decimo
quarto
.
quas
idem
Richardus
hic
in
curia
profert
,
ex
speciali
gratia
,
certa
scientia
,
&
mero
motu
,
for
himself
,
his
Heirs
and
Successors
,
did
give
and
grant
cuidam
Willielmo
Theckston
adtunc
armig'
&
postea
milit
'
the
Advowson
aforesaid
,
to
hold
to
him
and
his
Heirs
to
the
use
of
him
and
his
Heirs
for
ever
;
prout
per
easdem
Litteras
Patentes
plenius
apparet
;
by
virtue
of
which
said
Grant
,
the
said
Theckston
was
seized
of
the
Advowson
in
question
,
ut
de
uno
grosso
,
&c.
And
he
being
so
seized
,
the
Church
became
void
by
the
death
of
Wickham
,
posteaque
ac
eodem
tempore
quo
superius
in
narr'
pred'
supponitur
pred'
Johannem
Pierse
usurpasse
super
pred'
nuper
Regem
Car.
1.
He
the
said
John
Pierse
usurping
upon
the
said
William
Theckston
(
to
whom
of
right
it
then
belonged
)
did
present
the
said
Metcalfe
,
who
was
accordingly
instituted
and
inducted
,
by
which
the
said
John
Pierse
was
seised
of
the
Advowson
aforesaid
;
and
being
so
seized
,
and
the
Church
then
full
,
he
the
said
Theckston
did
by
Indenture
18
April
,
18
Car.
1.
release
to
the
said
John
Pierse
and
his
Heirs
,
all
his
Right
,
Title
,
Claim
,
&c.
by
which
the
said
John
Pierse
became
seized
,
and
he
dying
seized
,
the
same
descended
to
the
Defendant
Richard
,
as
his
Son
and
Heir
,
by
which
he
became
seized
;
and
then
the
Church
became
void
by
the
Death
of
Metcalf
,
and
continued
so
void
for
a
Year
and
half
,
and
more
,
and
by
that
Reason
,
Car.
2.
to
the
Church
so
void
,
per
lapsum
temporis
in
defectu
Patroni
Ordinarij
et
Metropolitani
jure
Prerogative
sue
Regie
eidem
,
Car.
2.
devolut
'
did
present
Samwayes
his
Clerk
,
who
was
inducted
,
and
afterwards
died
;
and
the
Church
being
so
void
,
the
Defendant
presented
one
Scroop
,
his
Clerk
,
absque
hoc
quod
praed'
nuper
Rex
Car.
1.
obiit
seisitus
of
the
Advowson
aforesaid
,
in
manner
and
form
as
the
Attorney
hath
declared
,
Et
hoc
paratus
est
,
&c.
unde
petit
jud'
et
breve
Episcopo
,
&c.
Scroop
pleads
the
same
Plea
,
mutatis
mutandis
.
The
Attorney
General
craves
Oyer
of
the
Letters
,
Patents
,
produced
in
Court
,
and
they
are
read
to
him
,
and
are
to
this
effect
:
They
recite
,
That
Queen
Elizabeth
had
by
her
Letters
Patents
,
Anno
13.
Regni
sui
,
granted
to
then
Earl
of
Warwick
,
all
those
Mannors
of
Bedall
and
Ascough
,
&c.
and
all
Advowsons
and
Rights
of
Patronage
thereunto
belonging
,
&c.
rendring
a
Rent
;
and
that
Jac.
1.
had
granted
the
Rent
to
Sir
Christopher
Hatton
,
et
al'
,
and
that
the
said
Mannors
and
Rents
by
good
Conveyances
in
the
Law
had
come
to
Sir
William
Theckston
,
Knight
,
and
that
he
then
had
and
held
the
same
to
him
and
his
Heirs
;
then
't
is
,
Know
ye
,
That
we
for
divers
good
Causes
and
Considerations
,
and
of
special
Grace
,
&c.
do
ratifie
and
confirm
to
him
the
said
William
Theckston
and
his
Heirs
;
&c.
all
those
,
&c.
then
it
follows
,
That
whereas
the
said
William
Theckston
,
by
Virtue
of
the
said
Letters
,
Patents
,
made
to
the
said
Earl
of
Warwick
,
and
lawful
Conveyance
of
the
Premisses
to
himself
made
,
doth
claim
to
have
the
Advowson
of
the
Church
of
Bedall
aforesaid
,
according
to
the
Tenour
and
Intent
of
the
said
Letters
,
Patents
;
and
whereas
he
the
said
King
Car.
1.
upon
the
Death
of
one
John
Petty
,
had
by
lapse
presented
Wilson
,
and
after
his
Death
,
the
said
Theckston
claiming
the
Right
of
Presentation
,
the
said
King
ad
dictam
Ecclestam
sic
vacantem
(
ut
ad
presentatio●em
snam
pleno
jure
spectant
)
had
presented
Dr.
Wickham
,
and
that
the
said
Theckston
,
to
recover
his
Right
,
had
brought
his
Writ
of
Quare
Impedit
,
upon
which
Issue
was
joyned
;
That
afterwards
it
was
agreed
between
Theckston
and
Wickham
,
that
Wickham
should
enjoy
it
during
his
Life
,
and
that
Theckston
and
his
Heirs
should
have
it
quietly
for
ever
after
,
prout
ex
informatione
dicti
Wickham
nostri
Capellani
in
ordinario
accepimus
;
Nos
igitur
volentes
,
That
the
said
Presentations
of
the
said
Wilson
and
Wickham
,
or
either
of
them
,
or
their
or
either
of
their
Institution
and
Induction
should
not
hurt
the
said
Theckston's
lawful
Right
of
presenting
to
the
said
Church
for
the
future
;
and
it
is
our
further
Intention
,
That
the
said
William
Theckston
,
his
Heirs
and
Assigns
,
shall
freely
and
peaceably
have
and
enjoy
the
said
Advowson
of
the
said
Church
of
Bedall
,
according
to
the
Tenour
and
true
Intent
of
the
said
Letters
,
Patents
,
granted
by
the
said
Queen
to
the
said
Ambrose
Earl
of
Warwick
,
any
Defect
or
Defects
in
the
same
Letters
,
Patents
,
notwithstanding
.
And
then
follows
the
Grant
it self
in
these
Words
,
Sciatis
igitur
quod
nos
ex
uberiori
et
speciali
gratia
nostra
,
&c.
Know
ye
therefore
,
That
we
of
our
more
abundant
and
special
Grace
,
and
of
our
certain
Knowledge
and
meet
Motion
,
have
given
and
granted
,
and
do
by
these
presents
,
for
our selves
,
our
Heirs
and
Successors
,
give
and
grant
to
the
aforesaid
William
Theckston
the
Advowson
,
Donation
,
free
Disposition
,
and
Right
of
Patronage
of
the
aforesaid
Church
of
Bedall
,
and
all
our
Right
,
Estate
,
Title
,
Interest
,
and
claim
whatsoever
of
presenting
to
the
said
Church
,
whensoever
or
howsoever
it
shall
become
void
:
Quibus
lectis
&
anditis
,
the
Attorney
General
demurrs
,
and
the
Defendant
joyns
;
and
Judgment
in
C.
B.
pro
Domino
Rege
,
upon
this
Reason
only
,
that
this
Grant
was
void
,
the
Advowson
being
in
gross
,
and
nothing
was
intended
to
pass
but
an
Advowson
Appendant
,
and
so
the
King
was
deceived
;
and
upon
a
Writ
of
Error
in
B.
R.
the
Judgment
was
affirmed
upon
another
point
,
viz.
That
the
Grant
pleaded
was
to
William
Theckston
,
then
Esq
;
and
afterwards
Knight
,
and
the
Grant
set
forth
upon
Oyer
,
was
to
William
Theckston
,
Knight
;
and
there
were
Three
Judges
of
Opinion
with
the
Patent
,
and
one
only
against
it
;
and
one
Judge
of
Opinion
with
the
Plaintiff
in
the
Error
,
as
to
both
the
Validity
of
the
Patent
it self
,
and
the
Identity
of
the
Person
named
in
the
Plea
and
Patent
.
And
now
it
was
argued
for
the
Plaintiffs
in
the
Writ
of
Error
.
That
this
Judgment
was
erroneous
;
and
first
it
was
answered
to
the
Objection
of
the
Variance
between
Knight
and
Esq
;
and
it
was
said
.
That
in
case
of
a
Title
of
Worship
,
the
want
of
it
could
never
viciate
a
Grant
;
that
even
in
Indictments
,
upon
the
Statute
of
Additions
,
a
Gentleman
may
be
called
Esquire
,
and
so
e
'
contra
,
and
thus
is
2
Iust.
that
here
constat
de
persono
,
there
's
nothing
doth
appear
to
shew
them
to
be
different
;
that
in
case
of
Feoffments
,
this
Pretence
will
not
hurt
,
because
the
Person
is
ascertained
,
and
here
't
is
likewise
the
same
,
it
is
William
Theckston
then
Esq
;
and
afterwards
Knight
,
't
is
but
one
Man
,
they
are
two
different
Affirmations
concerning
the
same
Person
;
that
in
the
Case
cited
on
the
other
side
of
the
Earl
of
Pembroke
in
Jones's
Rep.
and
in
1
Cro.
173.
and
Littlet
.
191.223
.
Richardson
and
Hutton
are
of
Opinion
,
That
such
Grant
is
good
;
then
't
was
said
.
That
't
would
be
very
hard
to
intend
them
several
Persons
,
in
order
to
avoid
a
Grant
;
that
Veritas
nominis
tollit
Errore●●
demonstrationis
Persone
;
that
he
was
William
Theckston
;
that
if
it
had
been
said
concessit
Wilielmo
Theckston
generally
,
that
would
have
been
sufficient
;
and
his
being
an
Esq
;
doth
not
exclude
his
being
a
Knight
,
so
that
't
is
not
a
false
Description
,
25
Edw.
3.19
.
a
Writ
was
abated
,
because
shewn
,
that
they
were
two
Persons
,
but
held
that
if
it
had
appeared
that
they
had
been
but
one
,
't
would
have
been
well
:
Then
was
cited
the
Major
of
Lynnes
Case
,
10
Rep.
126.
'T
is
true
,
this
is
a
Name
or
Title
of
Dignity
to
some
purposes
,
but
not
to
all
:
It
must
be
agreed
to
be
so
upon
Originals
and
Indictments
,
and
there
is
a
very
good
reason
for
it
;
because
in
that
Case
a
greater
Certainty
is
required
,
that
one
Man
may
not
suffer
for
or
instead
of
another
;
but
in
Case
of
Grants
,
any
Description
of
the
Person
is
sufficient
;
besides
,
if
a
Name
be
mistaken
in
a
Writ
or
Indictment
,
another
may
be
sued
or
preferred
by
the
true
Name
,
but
a
Man
cannot
of
common
Right
demand
a
new
Grant
;
tho'
this
be
a
Grant
from
the
Crown
,
't
is
the
same
case
,
for
the
King's
Grant
shall
be
taken
most
beneficially
for
the
Support
of
his
Honour
,
6
Rep.
6.
that
here
's
no
COlour
to
pretend
two
William
Theckstons
.
Then
it
was
said
,
That
this
at
most
was
only
an
Addition
of
Enlargement
to
his
Name
,
not
parcel
of
the
Name
it self
,
for
no
more
goes
to
that
,
than
Christian
and
Sirname
;
then
't
was
said
,
't
is
generally
known
,
That
the
use
of
Sirname
was
not
settled
amongst
us
,
till
long
after
the
Conquest
;
that
before
then
they
were
named
by
their
Titles
,
Offices
.
Places
of
Birth
or
Residence
,
or
Employments
,
as
doth
appear
plainly
by
Dugdale
1.
Monast.
37.
In
those
Days
Miles
was
used
instead
of
the
Sirname
,
immediately
after
the
Christian
Name
,
as
Ego
Wolwardus
Miles
,
and
many
more
such
.
Selden's
Tit.
of
Hon.
637
,
638.
thus
in
1
Monast.
166.
Domim
Algari
militis
,
2
Monast.
173.853
.
thus
it
was
in
the
time
of
Hen.
2.
then
after
Sirnames
came
to
be
used
,
this
Title
of
Miles
was
also
used
as
an
Addition
or
Inlargement
after
the
Sirname
;
Cambden's
Treatise
of
Sirnames
in
his
Remains
,
and
Kennell's
Parochial
Antiquities
,
lately
Printed
at
Oxford
,
in
4to
.
do
shew
this
,
That
the
Title
of
Knight
came
after
the
Sirname
as
an
increase
,
not
in
Reu
of
it
,
as
Merchant
,
Mercer
,
&c.
Professor
of
Divinity
,
Law
,
Musick
,
Master
of
Arts
,
&c.
for
further
Distinction
sake
.
Then
it
was
said
,
That
this
use
of
Sirnames
holds
not
in
case
of
Bishops
,
Dukes
or
Earls
,
for
they
add
only
the
Place
,
and
therefore
the
Descent
or
Accession
of
the
Honour
,
comes
instead
of
the
Sirname
,
so
is
2
Inst.
666.
but
now
William
Theckston
,
when
made
a
Knight
,
he
remains
William
Theckston
still
,
he
loses
no
part
of
his
former
Name
,
tho'
the
same
be
inlarged
;
if
it
had
been
otherwise
't
would
have
merged
the
Sirname
,
but
his
Title
makes
no
Alteration
therein
at
all
:
The
Law
doth
require
a
Man
to
be
named
only
by
his
Christian
and
Sirname
,
unless
somewhat
comes
in
lieu
of
the
last
,
or
the
first
be
altered
by
Confirmation
;
a
Grant
is
good
,
if
the
Party
be
so
described
,
as
that
he
may
be
known
,
tho'
there
be
a
Mistake
in
it
,
yet
't
is
good
,
as
a
Grant
to
an
Earl
or
Bishop
by
a
wrong
Christian
Name
,
hath
been
held
2
Rolls
Abr.
Tit.
Grants
,
44.
Dyer
376.
't
is
the
Identity
of
the
Person
,
which
the
Law
doth
most
regard
and
value
;
and
therefore
,
since
there
was
no
presence
,
but
that
the
same
Person
who
granted
it
to
Pierse
,
was
intended
by
and
in
the
King's
Patent
;
it
was
hoped
,
That
such
a
Nicety
should
not
lose
the
Subjects
Inheritance
in
this
Advowson
,
which
he
had
bought
for
a
valuable
Consideration
:
Further
it
was
said
,
this
could
not
hurt
upon
the
Oyer
of
this
Grant
in
this
Record
,
as
this
Case
stood
,
and
should
be
further
shewn
anon
.
Then
it
was
argued
,
That
either
take
the
Case
upon
the
Declaration
and
Plea
alone
;
or
take
it
as
it
stands
upon
the
Letters
Patents
alone
;
either
of
these
two
ways
,
't
is
with
the
Subject
:
If
the
Patent
be
considered
by
it self
,
there
's
nothing
appears
to
make
it
void
,
the
King
had
a
Power
to
grant
,
and
there
are
Words
sufficient
to
pass
it
.
Then
consider
the
Declaration
and
Plea
,
there
's
a
good
barr
to
the
Title
laid
in
the
Declaration
;
so
that
the
only
Objection
can
be
upon
the
Rules
of
pleading
,
as
it
stands
all
together
;
and
the
Query
is
,
If
P.
hath
owned
or
confess'd
any
such
thing
as
is
pretended
of
a
Seisin
in
gross
,
in
Eliz.
anno
12.
and
if
it
be
admitted
,
whether
the
King
can
take
an
Advantage
of
the
Variance
between
the
Patent
set
forth
on
Oyer
,
and
that
which
is
pleaded
,
the
same
being
only
pleaded
by
way
of
Inducement
,
whether
the
King
can
waive
his
own
Title
,
and
question
the
Defendants
in
this
Case
.
As
to
the
first
,
it
was
said
,
That
this
Grant
was
not
void
by
reason
of
any
such
Admission
,
the
King
declared
his
full
Intention
,
That
Sir
William
should
fully
and
freely
enjoy
this
Advowson
,
any
Defects
to
the
contrary
notwithstanding
;
that
't
is
not
admitted
in
this
Case
to
have
been
an
Advowson
in
gross
,
in
the
12th
of
Q.
Eliz.
no
such
thing
doth
appear
;
and
then
the
Grant
of
Car.
1.
is
good
;
and
if
it
did
so
appear
,
yet
the
Grant
is
good
.
The
Plea
doth
say
,
that
Car.
1.
came
to
it
by
Descent
,
but
that
doth
not
admit
her
seized
in
gross
:
That
Allegation
in
the
Declaration
is
mear
Surplusage
and
Immaterial
,
and
cannot
hurt
the
Party
which
makes
it
,
tho'
contradictory
to
,
or
inconsistent
with
his
Title
:
Nor
can
it
benefit
the
other
side
to
deny
it
;
for
if
he
had
denied
it
,
it
could
have
done
him
no
good
;
and
consequently
to
admit
it
,
shall
not
hurt
him
.
Now
't
is
not
necessary
in
a
Quare
Impedit
to
alledge
a
time
of
Seisin
;
a
Seisin
generally
in
time
of
Peace
is
enough
;
then
the
not
denying
,
admits
only
what
is
materially
alledged
.
Suppose
the
Defendant
had
pleaded
absque
hoc
,
that
Queen
Elizabeth
did
present
Tymmes
modo
et
forma
;
and
it
had
appeared
upon
the
Trial
,
that
he
was
presented
in
the
43d
Year
of
her
Reign
,
it
must
have
been
against
the
Defendant
.
Even
,
where
time
is
required
to
be
alledged
,
another
time
may
be
proved
,
as
in
Trespass
,
Battery
,
&c.
The
most
that
can
be
pretended
to
,
is
,
that
here
is
an
Admission
of
her
being
seized
in
gross
after
the
Grant
to
the
Earl
;
and
it
might
be
appendant
then
,
and
afterwards
got
to
the
Crown
by
Presentations
;
there
's
no
colour
to
suppose
an
admission
of
the
time
.
Hob.
71.
The
Case
of
Sherly
and
Wood
,
and
2
Leon.
99.
prove
that
neither
alledging
or
confessing
a
thing
immaterial
shall
hurt
;
the
Reason
is
the
same
for
both
.
There
was
a
plain
Artifice
in
this
Pleading
;
the
Declaration
mentions
a
Presentation
,
prout
per
Inrolment
,
which
cannot
be
,
unless
in
the
same
Court
;
otherwise
you
must
plead
an
Exemplification
,
Wymock's
Case
,
5
Rep.
If
the
Declaration
had
been
in
the
common
usual
way
,
setting
out
the
Queen
to
have
been
seized
generally
,
or
to
have
presented
generally
,
there
had
nothing
appeared
to
have
hurt
this
Grant
;
for
it
might
then
have
been
appendant
;
and
if
it
might
be
so
,
it
shall
be
intended
to
be
so
;
for
he
is
not
bound
to
aver
it
to
be
appendant
;
for
upon
Oyer
every
thing
shall
be
intended
to
make
a
Grant
good
,
unless
the
contrary
doth
appear
,
2
Cro.
679.
he
need
not
plead
,
that
it
was
appendant
at
the
time
of
the
Grant
to
the
Earl
;
Concessit
is
enough
,
and
that
tho'
in
general
words
,
35
Hen.
8.
Bro.
Pleading
143.
Kelway
43.
1
Rolls
Abridg.
405.
Then
suppose
it
did
appear
that
this
Advowson
was
not
appendant
in
the
13th
Eliz.
yet
it
doth
pass
:
There
is
but
one
supposed
Falsity
,
and
that
is
Dr.
Wilson's
Presentation
by
Lapse
,
which
is
admitted
to
be
pleno
jure
;
First
,
The
Grant
is
full
,
express
,
and
large
enough
,
Know
ye
therefore
,
&c.
All
our
Right
,
&c.
as
full
words
as
can
be
used
,
without
any
restriction
whatsoever
.
And
as
to
the
Suggestions
,
there
's
not
any
Mistake
in
them
:
'T
is
not
suggested
that
't
was
ever
appendant
;
not
suggested
that
it
did
pass
by
those
Letters
Patents
;
nor
that
it
came
to
Th.
but
only
that
he
claimed
it
;
and
the
word
claim
doth
not
always
import
a
lawful
Claim
;
for
a
Man
is
amerciable
pro
falso
clamore
:
Here
's
as
much
Caution
and
Care
in
the
penning
of
these
Letters
Patents
as
was
possible
,
nothing
but
what
is
exact
.
Suppose
a
Man
doth
claim
an
Advowson
by
a
void
Grant
,
and
he
brings
a
Writ
,
after
the
King
hath
presented
;
and
the
King
says
,
Let
my
Clerk
have
it
quietly
for
his
Life
,
and
you
shall
have
a
Grant
from
me
,
and
shall
be
secure
of
all
my
Right
for
the
future
:
't
is
not
said
,
that
't
was
Sir
William's
Presentation
,
but
he
sued
a
Writ
so
describing
it
.
'T
is
admitted
by
Car.
1.
that
this
Patent
might
be
void
,
yet
it
was
his
Intention
that
Th.
should
have
it
for
the
future
:
This
Intent
is
as
plain
as
words
can
make
it
;
that
he
and
his
Heirs
should
for
ever
enjoy
it
,
notwithstanding
any
defect
in
the
Patent
of
Q.
Eliz.
'T
is
not
only
to
restore
an
old
Title
,
and
make
reparation
for
the
wrong
done
by
the
King's
Presentation
,
but
in
Case
the
old
Title
were
defective
,
to
make
and
give
to
him
a
good
one
:
If
it
appears
that
the
King's
Intention
were
for
passing
it
,
it
shall
pass
,
notwithstanding
a
Mis-recital
.
Suppose
the
Grant
had
been
recited
at
large
,
and
no
more
had
been
said
but
the
King
confirms
it
,
would
not
that
have
been
good
:
Then
was
cited
the
Earl
of
Cumberland's
Case
,
8
Rep.
166.
the
word
therefore
is
in
that
Case
too
;
yet
because
full
words
are
superadded
,
it
shall
not
be
qualified
by
the
Deed
recited
,
and
that
is
a
much
stronger
Case
than
this
:
Hill.
22
&
23
Car.
2.
Sir
Robert
Atkins
versus
Holton
,
't
is
in
Ventris
.
And
the
pleading
in
Vidian's
Ent
'
.
agreed
that
King
John's
Patent
was
void
,
and
King
Edw.
must
have
been
deceived
in
his
Grant
,
and
his
Intention
might
be
there
said
to
be
only
to
make
a
Restitution
.
And
a
false
Inquifition
turns
a
Man
as
much
out
of
possession
of
a
Franchise
,
as
the
King's
Presentation
doth
out
of
a
Patronage
;
but
held
there
,
that
tho'
King
John's
Grant
was
void
,
yet
that
of
Edward
was
good
,
because
the
words
were
full
and
General
,
and
the
King
shewed
his
intent
that
the
Party
should
have
the
thing
.
But
the
other
side
have
objected
,
That
this
is
a
qualified
Intention
according
to
the
tenor
of
the
first
Patent
.
To
which
it
was
answered
,
That
the
King
did
suppose
that
Patent
to
be
defective
,
and
his
true
intent
was
that
Th.
should
have
the
Advowson
.
Besides
,
tho'
it
were
in
gross
,
yet
it
might
have
the
reputation
of
being
appendant
,
and
it
was
the
King's
meaning
to
pass
it
,
6
Rep.
63.
a
small
matter
will
make
a
reputation
of
an
Appendancy
.
If
a
Man
mortgages
his
Mannor
,
excepting
the
Advowson
thereto
belonging
,
't
is
become
in
gross
;
but
when
the
Condition
is
performed
,
and
the
Deed
avoided
,
't
is
appendant
again
;
therefore
it
might
be
thought
appendant
;
it
might
be
some
accident
,
which
did
sever
it
from
the
Mannor
;
yet
if
it
had
the
reputation
of
being
so
,
it
might
be
within
the
King's
intent
to
pass
it
,
tho'
it
did
not
pass
by
the
first
;
't
was
intended
that
some
Advowson
should
pass
,
and
here
are
express
words
to
pass
this
:
In
Coke's
Entries
...
Quare
Impedit
,
it
appears
that
this
Advowson
of
Bedall
was
appendant
.
It
further
appears
by
History
,
That
this
Simon
Digby
had
committed
Treason
,
before
the
Church
was
void
;
and
before
Attainder
the
Queen
presented
,
that
made
it
in
gross
,
then
the
Attainder
makes
it
appendant
again
;
then
tho'
it
might
be
possible
that
the
Queen
was
seized
in
gross
,
yet
if
it
were
so
,
upon
Digby's
Attainder
she
was
seized
of
it
as
appendant
:
now
if
any
thing
might
make
it
appendant
,
't
will
be
hard
to
construe
it
void
,
where
,
for
any
thing
that
doth
appear
,
it
might
be
good
.
Such
Declarations
so
subtle
may
ensnare
any
Defendant
,
and
take
away
any
Man's
Inheritance
.
The
Attorney
should
have
taken
Issue
upon
the
Traverse
,
and
that
would
have
brought
the
whole
Matter
in
question
.
As
to
the
mistake
about
Wilson's
Presentation
,
that
cannot
vitiate
against
an
express
intent
;
the
King's
design
was
to
determine
the
difference
between
his
Incumbent
and
another
;
he
would
not
have
his
Right
in
this
Benefice
to
be
questioned
or
disputed
;
for
otherwise
,
there
was
no
reason
for
Th.
to
take
a
Grant
to
avoid
Controversie
,
and
yet
that
new
Grant
to
leave
him
in
as
bad
or
worse
Condition
;
here
's
both
Confirmation
and
Grant
;
and
if
so
,
what
matters
it
,
whether
Wilson
were
presented
one
way
or
the
other
.
Th.
could
not
have
been
in
a
worse
Condition
,
if
he
had
miscarried
in
his
Writ
,
the
King
designed
to
him
all
the
Right
which
he
had
,
and
otherwise
he
was
at
the
charge
of
procuring
Letters
Patents
,
to
no
other
purpose
then
to
be
deceived
.
Besides
,
here
was
a
good
Consideration
,
tho'
Th.
had
no
right
:
a
Surrender
of
void
Letters
Patents
is
a
good
Consideration
:
1
Rep.
143.
Altonwood's
Case
,
and
5
Rep.
65.
Lord
Chandois's
Case
;
the
King
there
thought
himself
seized
by
virtue
of
the
Surrender
,
which
he
was
not
,
yet
held
good
;
so
that
't
is
not
every
Mistake
that
will
avoid
a
Grant
,
when
the
Intention
appears
,
1
Rolls
Rep.
23.
Therefore
if
there
may
be
any
thing
given
in
Evidence
,
which
might
support
these
Letters
Patents
,
they
shall
not
be
adjudged
void
upon
Oyer
:
and
to
make
these
void
of
Car.
1.
they
must
construe
those
of
the
Queen
void
;
and
these
cannot
be
adjudged
void
,
because
they
are
not
before
the
Court
;
Letters
Patents
recited
were
never
adjudged
illegal
;
for
notwithstanding
this
recital
,
there
might
be
more
words
in
them
,
which
might
make
them
good
:
't
is
inter
alia
,
suppose
it
had
been
spectant
'
or
existent
'
in
Bedall
,
that
would
have
passed
the
Advowson
in
gross
:
'T
is
not
inconsistent
with
any
thing
said
in
this
Patent
of
Car.
1.
to
say
that
the
other
of
Queen
Elizabeth
contained
or
passed
more
,
Mod.
Rep.
194
,
195.
Hardres
231.
the
igitur
is
only
nota
continuationis
,
and
doth
not
always
suppose
all
that
's
precedent
to
be
the
Consideration
,
it
can't
well
begin
a
Deed
,
and
that
is
all
:
't
is
Exuberiori
gratia
,
&c.
3
Leon.
249.
'T
is
impossible
to
suppose
or
use
more
comprehensive
words
then
in
this
Case
,
and
therefore
it
was
inferred
that
these
Letters
Patents
of
Car.
1.
were
good
.
Then
it
was
argued
further
with
the
Plaintiff
in
the
Writ
of
Error
,
that
in
this
Case
Mr.
Attorney
can
take
no
advantage
of
either
of
these
Mistakes
in
the
Defendant's
Plea
,
if
they
are
such
;
for
that
't
is
only
Matter
of
Inducement
;
and
the
Letters
Patents
needed
not
have
been
pleaded
with
a
profert
hic
in
curia
,
and
therefore
cannot
hurt
;
If
the
Inducement
be
good
to
maintain
the
Traverse
or
make
it
material
,
that
's
enough
;
but
still
the
Inducement
is
not
traversable
:
'T
is
true
,
that
generally
speaking
,
a
Deed
or
Grant
after
Oyer
becomes
part
of
the
Plea
,
but
still
't
is
only
Inducement
.
If
a
Defendant
confesses
and
avoids
,
the
Plaintiff
shall
not
depend
upon
that
which
he
confesses
,
but
answer
that
whereby
he
avoids
the
Plaintiffs
Title
or
Charge
:
This
is
no
more
then
if
they
had
traversed
the
Grant
,
which
they
could
not
do
.
In
the
Case
of
a
common
Person
,
suppose
the
Defendant's
Title
not
full
,
yet
if
he
traverses
the
Plaintiffs
,
that
's
enough
:
Form
requires
an
Inducement
to
a
Traverse
,
but
the
latter
is
only
material
for
the
Plaintiff
to
answer
to
;
for
nothing
can
be
traversed
,
but
what
is
material
;
now
why
should
it
not
have
been
a
good
answer
to
their
Declaration
,
to
have
said
that
Car.
2.
presented
by
Lapse
,
absque
hoc
that
Car.
1.
died
seized
;
for
by
this
the
Seisin
or
Presentation
of
Car.
2.
had
been
avoided
;
and
there
's
nothing
else
material
in
the
Declaration
;
for
the
Seisin
of
Queen
Elizabeth
and
Jac.
1.
are
not
to
the
purpose
;
and
if
answered
by
the
Defendant
,
it
must
have
been
against
him
,
there
had
been
a
good
Title
for
the
King
without
it
:
then
supposing
it
necessary
to
shew
how
it
came
out
of
Car.
1.
the
Attorney
General
can
only
take
Issue
on
the
Traverse
of
his
dying
seized
;
for
that
denies
the
whole
Title
that
is
material
to
be
answered
to
:
Now
whatsoever
shews
that
the
Plaintiff
hath
no
right
to
the
thing
in
demand
,
is
a
good
Plea
,
let
who
will
have
the
true
right
:
The
true
Title
upon
this
Declaration
is
that
Car.
1.
presented
,
and
thereby
became
seized
,
and
died
seized
;
and
the
denying
him
to
dye
seized
,
is
a
denial
of
this
Title
;
for
if
K.
Car.
2.
did
present
by
Lapse
,
and
K.
Car.
1.
did
not
die
seized
,
't
is
with
the
Defendant
;
no
Man
is
bound
to
answer
that
,
which
if
he
do
,
't
will
still
be
against
him
;
but
if
a
Man
makes
such
an
answer
,
as
if
true
,
the
present
Plaintiff
hath
no
Title
,
't
is
enough
:
Then
if
it
be
true
that
no
Right
descended
from
Car.
1.
to
Car.
2.
and
that
Car.
2.
presented
only
by
Lapse
,
what
Right
can
his
present
Majesty
have
:
and
all
this
is
confessed
by
the
Demurrer
,
if
well
pleaded
;
and
't
is
no
Objection
to
say
,
that
the
dying
seized
ought
not
to
be
traversed
,
but
only
the
Presentation
;
for
that
is
a
mistake
;
in
case
of
Land
't
is
good
;
and
an
Advowson
is
an
Inheritance
descendible
in
like
manner
,
and
Mr.
Attorney
thinks
it
a
good
Traverse
;
for
he
all
along
in
his
Declaration
,
alledges
a
dying
feized
from
Queen
Elizabeth
downward
:
and
there
are
several
Presidents
thus
,
Winch's
Ent.
661
,
662.
and
Winch.
912
,
686
,
692.
and
Buckler
and
Symonds
,
Winch.
911
,
912.
is
of
an
Advowson
in
gross
;
and
in
the
same
Book
35
,
59
,
are
thus
:
A
man
may
die
seized
of
an
Advowson
,
as
well
as
of
Land
;
and
if
he
doth
not
dye
seized
,
it
doth
not
descend
;
and
the
Seisin
in
gross
is
not
to
be
traversed
,
as
is
1
Anderson
269.
and
Hob.
102.
‛
Then
't
was
said
that
the
true
Reason
and
Nature
of
a
material
good
Traverse
is
well
explained
in
Vaughan's
first
Case
of
Tufton
and
Sir
Rich.
Temple
,
and
1
Saund.
21
,
22.
and
it
is
this
,
especially
in
a
Quare
Impedit
,
If
any
thing
in
the
Count
be
travers'd
,
it
must
be
such
Part
,
as
if
true
,
is
inconsistent
with
the
Defendants
Title
,
and
if
false
or
found
against
the
Plaintiff
,
doth
absolutely
destroy
his
Title
;
nay
,
if
the
Traverse
leaves
no
Title
in
the
Plaintiff
,
then
't
is
good
,
whatsoever
comes
of
the
Defendants
.
Then
the
Difficulty
is
,
If
the
King
by
his
Prerogative
may
waive
his
own
Title
which
is
traversed
,
and
insist
upon
the
Deficiency
of
that
which
the
Defendant
alledges
;
and
in
the
Case
of
the
King
and
the
Bishop
of
Worcester
,
and
Jervis
,
in
Vaughan
53.
there
't
is
said
,
That
the
King
ought
to
maintain
his
own
,
and
not
to
question
the
Defendants
;
he
cannot
desert
that
which
he
hath
alledged
for
himself
,
and
fall
upon
the
Defendants
Title
;
and
Reason
warrants
such
Rule
for
(
tho'
the
King
hath
no
Damages
in
a
Quare
Impedit
notwithstanding
his
laying
it
ad
dampnum
,
Hob.
23
,
yet
)
the
Suit
supposes
an
Hindrance
and
Damage
to
the
King
,
and
if
the
Right
be
not
his
,
he
hath
no
Cause
to
complain
of
the
Defendant
,
tho'
another
hath
:
Every
Man
is
to
recover
by
his
own
Strength
,
and
not
by
the
Weakness
of
the
Defendants
Pretensions
;
and
if
the
Law
be
thus
,
then
how
can
Mr.
Attorney-General
take
Advantage
of
this
upon
Demurrer
after
Oyer
,
for
now
upon
Oyer
't
is
,
as
they
say
,
become
Part
of
the
Defendants
Plea
,
and
consequently
it
must
be
part
of
the
Inducement
;
and
if
so
,
he
ought
in
that
Case
,
to
have
taken
Issue
upon
the
Traverse
,
which
denied
his
Master's
Title
:
Wherefore
,
upon
the
whole
Matter
,
it
was
prayed
,
That
the
Judgment
should
be
reversed
.
On
the
other
side
,
't
was
argued
for
the
King
,
That
this
Judgment
ought
to
stand
,
and
as
to
the
last
point
,
't
was
said
,
That
taking
it
for
granted
,
the
King
could
not
traverse
any
Point
of
the
Defendants
Plea
;
yet
certainly
he
might
demurr
upon
the
whole
,
in
case
it
were
insufficient
;
That
now
Oyer
was
craved
,
and
had
,
the
Deed
did
become
part
of
the
Defendants
Plea
,
and
must
be
taken
as
such
;
That
tho'
there
had
been
no
need
of
a
Profert
,
yet
when
't
is
produced
,
't
is
such
as
he
hath
pleaded
,
and
upon
the
whole
,
the
Court
is
to
judge
,
there
being
a
Demurrer
;
That
as
the
Case
stood
,
the
King
might
take
advantage
of
both
the
Exceptions
;
That
the
Declaration
of
it self
was
good
,
and
if
the
Plea
be
naught
,
the
King
ought
to
have
Judgment
for
him
;
That
every
Plea
is
to
be
taken
most
strongly
against
the
Party
that
pleads
it
;
That
here
the
Defendant
had
admitted
K.
Car.
1.
well
seized
,
that
he
ought
to
shew
it
out
of
him
,
otherwise
the
Plea
was
ill
,
that
every
Traverse
must
have
an
Inducement
;
That
if
upon
the
whole
Plea
,
it
did
not
appear
that
King
Car.
1.
parted
with
this
Advowson
,
't
is
naught
;
That
if
by
the
Parties
own
shewing
,
it
was
manifest
to
the
Court
,
That
the
King
continued
seized
,
and
what
he
doth
further
shew
,
no
ways
contradicts
it
,
he
could
not
traverse
the
dying
seized
,
and
therefore
a
Demurrer
was
most
proper
;
and
consequently
,
upon
this
Demurrer
,
they
were
let
in
to
affirm
,
that
nothing
passed
from
the
King
by
these
Letters
Patents
of
Car.
1.
Then
it
was
argued
,
That
this
Grant
was
void
,
because
it
was
to
a
Person
then
Esq
;
that
Tunc
Armigero
,
can
have
Reference
only
to
the
time
of
the
Letters
Patents
,
that
a
Man
cannot
be
a
Knight
and
an
Esq
;
at
the
same
time
,
that
Knight
is
part
of
his
Name
,
and
the
Title
of
Esq
;
is
drowned
in
that
of
Knight
,
that
the
old
Books
are
thus
,
7
Hen.
4.7
.
14
Hen.
6.15
.
21
Edw.
4.72
.
2
Inst.
594.
666.
Hutt
.
41.
Bro.
Tit.
nosme
.
33.
1
Cro.
372.
That
't
is
true
,
if
a
Deed
of
Feoffment
be
made
to
a
Man
by
a
wrong
Name
,
and
Livery
be
thereupon
had
,
't
is
good
;
but
all
the
Books
make
a
difference
between
that
Case
,
and
where
it
is
by
Deed
,
where
the
Operation
is
altogether
by
Deed
:
Then
was
cited
the
Earl
of
Pembroke's
Case
,
in
Littleton's
Rep.
181.
and
in
Jones
,
215
,
223.
the
Court
went
upon
the
Reason
,
that
the
Jury
found
him
to
be
the
same
Person
,
Latch
.
161.
there
they
would
intend
him
an
Esq
;
at
the
time
of
the
Commission
,
and
a
Knight
at
the
time
of
the
Return
,
and
it
was
for
Necessity-sake
,
for
to
prevent
the
avoiding
of
so
many
Trials
,
as
had
been
upon
that
Commission
.
Lord
Ewre's
Case
,
2
Cro.
240.
there
't
was
held
well
enough
,
because
sufficiently
described
;
so
in
a
Grant
,
if
it
cannot
be
intended
otherwise
than
to
the
same
Person
,
there
't
is
well
enough
;
but
here
they
can
never
be
the
same
:
In
Case
of
an
Earl
or
Bishop
,
there
't
is
understood
,
who
is
meant
by
the
Description
,
there
can
be
but
one
of
that
Title
;
but
here
the
Plea
saith
,
That
he
was
not
a
Knight
at
the
time
;
and
Sir
Thomas
Ormond
was
attainted
by
the
Name
of
Thomas
Ormond
,
Esq
;
and
ill
for
that
Reason
,
2
Rolls
Abr.
43.198
.
Dyer
150.1
Leon.
159.160
.
the
highest
and
lowest
Dignity
are
universal
,
and
the
same
in
every
Kingdom
,
7
Rep.
16.20
.
Edw.
4.6
.
can
any
body
say
upon
this
Grant
,
That
the
King
intended
to
pass
this
Advowson
to
a
Man
,
that
then
was
only
an
Esq
;
Selden
.
682.
the
Addition
of
Esq
;
is
drowned
and
merged
in
that
of
Knight
,
and
Selden
was
a
very
competent
and
good
Judge
of
this
Matter
:
Then
't
was
said
,
that
the
only
way
to
salve
this
,
which
had
not
been
urged
for
the
Plaintiff
,
was
,
that
he
might
be
reputed
a
Knight
,
and
a
Name
of
Reputation
will
be
sufficient
to
take
by
,
and
to
this
it
was
answered
,
That
he
who
is
reputed
a
Knight
,
and
is
none
,
cannot
take
by
that
Name
:
And
besides
,
if
he
could
,
it
should
have
been
pleaded
by
a
per
Nomen
;
in
case
of
a
Bastard
,
the
Reputative
Name
must
be
shewn
to
make
the
Grant
good
;
the
Degree
of
Knight
was
formerly
of
Esteem
in
the
Law
,
as
upon
a
Writ
of
Right
,
if
the
Mise
be
joyned
;
and
if
a
Peer
be
Party
to
any
Issue
at
Law
,
triable
by
Jury
,
&c.
As
to
the
Objection
,
that
a
Grant
to
one
by
a
Name
of
Dignity
,
which
he
really
had
not
,
viz.
The
Eldest
Son
of
a
Duke
as
a
Marquess
,
and
that
a
Grant
to
him
by
that
Name
is
good
,
't
was
answered
,
That
there
was
a
real
Reputation
,
he
takes
place
after
all
,
real
Marquesses
as
a
Marquess
by
the
Rules
of
Heraldry
:
There
's
a
ground
for
it
,
from
the
Precedency
given
him
by
the
common
Use
and
Custom
of
the
Realm
,
and
they
are
named
so
now-a-days
in
Deeds
,
but
anciently
Conveyancers
were
more
Cautinos
,
and
named
them
Esquires
commonly
called
Marquesses
;
and
even
now
,
careful
Men
call
them
eldest
Sons
of
such
Dukes
,
&c.
If
a
Reputation
would
have
done
it
,
the
pleading
should
have
been
with
a
Cognit'
et
Reputat'
per
Nomen
:
It
is
the
name
which
intitles
the
Grantees
to
take
,
and
otherwise
they
have
no
pretence
to
claim
by
such
Letters
Patents
,
no
more
than
John
or
Thomas
Theckston
;
and
if
the
Person
hath
any
other
Name
of
Reputation
,
that
ought
to
be
shewn
,
wherefore
it
was
hoped
,
That
this
was
cause
enough
to
affirm
the
Judgment
.
Then
it
was
argued
,
That
this
Grant
was
void
as
a
Grant
of
an
Advowson
appendant
,
when
upon
the
Record
,
it
appeared
to
be
an
Advowson
in
gross
;
that
the
Defendant
had
admitted
it
an
Advowson
in
gross
,
in
Queen
Elizabeth
that
he
hath
not
only
admitted
,
but
confess'd
it
in
almost
direct
terms
,
by
saying
,
Bene
&
Verum
est
,
that
Car.
1.
became
and
was
seized
in
manner
as
in
the
Declaration
;
this
is
a
full
Confession
,
That
the
Queen
was
seized
in
gross
,
't
was
said
to
come
to
that
King
by
Descent
,
and
so
there
is
no
room
left
for
Presumption
or
Intendment
,
that
it
was
by
any
wrongful
or
other
Seisin
.
Then
't
was
urged
,
That
nothing
passed
to
the
Earl
of
Warwick
,
because
not
appendant
,
but
in
gross
,
and
for
this
was
cited
Moor
45.
Hob.
322
,
323.
and
other
Books
;
so
that
it
doth
not
appear
,
that
the
King
did
intend
to
pass
this
Advowson
;
for
in
the
Grant
to
the
Earl
of
Warwick
,
there
's
no
Grant
of
it
by
any
express
Name
,
which
its
probable
would
have
been
,
had
the
same
been
intended
;
now
to
suppose
it
appendant
,
is
to
suppose
against
the
Record
,
against
both
the
Averment
in
the
Count
,
and
the
Confession
in
the
Plea
,
't
is
in
general
Words
,
una
cum
Advocationibus
,
&c.
nor
does
it
pass
by
the
Letters
Patents
of
Car.
1.
because
it
did
not
pass
to
the
Earl
,
by
those
of
Queen
Eliz.
this
Grant
is
ushered
in
after
all
the
Recitals
,
and
those
suppose
the
Advowson
to
have
passed
by
the
first
;
Igitur
;
wherefore
,
it
must
be
upon
Consideration
of
what
is
before
alledged
,
this
is
at
least
an
illative
Word
,
and
cannot
begin
an
independent
Substantive
Clause
of
it self
;
so
is
Vlterius
,
2
Browt
.
132.
If
this
Granting
Part
should
be
taken
to
be
Substantive
,
and
to
have
no
Reference
to
what
is
precedent
,
all
those
Recitals
would
be
vain
and
insignificant
,
and
the
King
might
as
well
have
begun
with
the
Words
of
the
Grant
.
The
King's
Grants
are
to
be
taken
according
to
his
Intentions
,
and
those
are
to
be
expounded
by
the
Recitals
;
then
were
quoted
many
Cases
,
as
5
Rep.
93.
Hob.
120.203
.
Hutt.
7.2
Rolls
Abr.
189.11
Rep.
93.
and
it
was
said
,
That
here
are
many
false
Recitals
,
Sir
Will
,
Theckston
claims
,
that
must
be
intended
a
lawful
Claim
,
whereas
he
could
not
lawfully
challenge
any
Right
to
this
Advowson
;
That
the
King
presented
Wilson
by
lapse
;
The
King
was
deceived
in
thinking
that
this
passed
to
the
Earl
;
The
Agreement
between
Dr.
Wickham
and
Sir
William
Theckston
,
was
only
to
deceive
the
King
:
Here
's
no
notice
taken
of
the
Advowsons
being
in
gross
;
The
Quality
and
Nature
of
the
Advowson
is
totally
concealed
from
the
King
;
the
Words
notwithstanding
any
Defect
,
helps
only
want
of
Form
;
Here
was
a
plain
Artifice
in
the
Matter
;
in
Queen
Elizabeth's
Grant
,
it
was
Advowsons
in
General
,
&c.
but
when
Car.
1.
is
to
confirm
that
Grant
,
't
is
of
that
Church
by
Name
;
all
the
intermediate
Recitals
between
that
of
the
first
Grant
,
and
the
words
of
this
new
Grant
,
are
dependent
on
that
first
:
The
King's
Intention
,
That
Theckston
should
have
it
,
is
not
absolutely
,
but
secund'
Thenorem
&
Intentionem
of
the
former
Patent
;
the
King
meant
only
to
restore
to
him
his
old
Right
which
he
had
by
that
Patent
,
notwithstanding
the
Presentations
,
10
Rep.
110.
all
Facts
recited
in
the
King's
Grant
,
shall
be
intended
to
be
of
the
Suggestion
of
the
Patentee
.
If
there
be
several
Considerations
,
and
one
false
,
and
the
King
deceived
thereby
,
it
shall
viciate
the
Grant
,
3
Leon.
249.
Voers
Case
cited
in
Legates
Case
;
Fits
.
Tit.
Grant
,
58.
3
Leon.
119.
If
the
Granting
Words
had
stood
alone
,
the
Case
had
been
more
doubtful
,
but
here
they
are
all
coupled
.
In
all
the
King's
Grants
,
there
must
be
some
Considerations
for
his
Favour
,
and
abundance
of
Cases
were
quoted
concerning
the
King's
Grants
,
Misrecitals
,
false
Recitals
,
and
Deceit
,
&c.
Then
it
was
strenuously
insisted
upon
,
That
the
Recitals
and
the
Granting
Clause
,
must
be
consider'd
and
judged
of
together
;
that
the
contrary
Opinion
,
is
to
make
the
Granting
Part
to
be
without
any
Consideration
;
't
is
to
have
a
Conclusion
without
Premisses
,
an
igitur
without
a
Cause
;
That
eadem
servitia
can
never
be
intended
new
ones
;
That
secundum
tenorem
must
referr
to
the
Appendant
Advowson
,
and
therefore
the
Advowson
in
gross
here
declared
upon
and
pleaded
to
,
can
never
pass
by
this
Grant
,
and
upon
the
whole
it
was
prayed
,
That
the
Judgment
might
be
affirmed
.
It
was
replied
on
behalf
of
the
Plaintiff
in
Error
,
That
as
to
the
Variance
in
the
Title
of
Knight
,
no
Answer
had
been
given
to
the
reasonable
Distinction
between
the
Case
of
Grants
,
and
that
of
Writs
and
Indictments
,
that
here
was
no
Proof
or
Appearance
of
a
Diversity
of
Persons
;
That
as
to
the
Grant
it self
,
secund'
tenorem
,
could
mean
only
a
Reference
to
the
Interest
or
Estate
granted
by
them
,
not
to
the
thing
or
the
Nature
of
it
;
That
such
Words
signified
only
,
as
fully
and
largely
,
they
had
no
express
Relation
to
the
Quality
of
the
Advowson
,
whether
in
gross
or
appendant
;
That
by
such
Niceties
,
any
or
most
Patents
might
be
avoided
,
That
Grants
of
Honours
as
well
as
of
Interests
,
if
questioned
,
must
be
under
the
same
Rule
;
and
the
Considerations
upon
which
they
are
grounded
,
may
be
subject
to
Inquiry
,
if
true
or
false
,
&c.
That
the
Patent
of
it self
,
without
Reference
to
the
pleading
was
good
,
That
the
Judgment
desired
,
was
to
condemn
a
Patent
as
void
,
because
another
Patent
recited
in
it
was
so
,
which
perhaps
was
not
fully
recited
;
and
if
it
were
,
was
not
in
Judgment
before
the
Court
;
and
the
substance
of
what
was
urged
before
,
was
in
short
repeated
,
and
prayed
,
That
the
Judgment
might
be
revers'd
,
and
it
was
accordingly
revers'd
;
and
Mr.
Pierse
(
Scroope
being
dead
)
presented
Francis
Pemberton
his
Clerk
,
who
was
admitted
,
instituted
and
inducted
,
&c.
FINIS
.
THE
NAMES
OF
THE
Principal
Cases
.
-
1.
DOminus
Rex
&
Viscount
Purbeck
.
Page
1
-
2.
Duvall
versus
Price
.
Page
12
-
3.
John
Duvall
and
Elizabeth
his
Wife
,
versus
William
Terry
of
London
,
Merchant
.
Page
15
-
4.
William
Dolphin
and
Katharine
his
Wife
,
versus
Francis
Haynes
.
Page
17
-
5.
Dormer
Sheppard
&
al'
,
versus
Joseph
Wright
&
al'
.
Page
18
-
6.
Whitfield
&
Ux'
&
al'
,
versus
Paylor
&
Ux'
&
al'
.
Page
20
-
7.
Thomas
Arnold
versus
Mr.
Attorney
General
,
and
Matthew
Johnson
Esq
;
Thomas
Bedford
Gent.
Page
22
-
8.
Sir
Richard
Dutton
versus
Richard
Howell
,
Richard
Grey
,
and
Robert
Chaplyn
Executors
of
Sir
John
Witham
decased
.
Page
24
-
9.
Philips
versus
Bury
.
Page
35
-
10.
Dr.
William
Oldis
versus
Charles
Donmille
.
Page
58
-
11.
Smith
&
Ux'
,
versus
Dean
and
Chapter
of
St.
Paul's
,
London
,
and
Lewis
Ruggle
.
Page
67
-
12.
The
Countess
of
Radnor
versus
Vandebendy
&
al'
.
Page
69
-
13.
Dominus
Rex
versus
Baden
.
Page
72
-
14.
Hall
&
al'
Executors
of
Thomas
Thynne
,
versus
Jane
Potter
Administratrix
of
George
Potter
.
Page
76
-
15.
The
Society
of
the
Governour
and
Assistants
of
the
New
Plantation
of
Vlster
in
the
Kingdom
of
Ireland
,
versus
William
Lord
Bishop
of
Derry
.
Page
78
-
16.
Sir
Caesar
Wood
aliàs
Cranmer
,
versus
Duke
of
South-hampton
.
Page
83
-
17.
Sir
Caesar
Wood
aliàs
Cranmer
,
versus
Thomas
Webb
.
Page
87
-
18.
Jonathan
Lord
Bishop
of
Exeter
&
al'
,
versus
Sampson
Hele.
Page
88
-
19.
Robert
Davis
versus
Dr.
John
Speed
.
Page
104
-
20.
Wats
&
al'
versus
Crooke
.
Page
108
-
21.
Lee
Warner
versus
William
North.
Page
110
-
22.
Briggs
versus
Clark
ibid.
-
23.
William
Bridgman
&
al'
,
versus
Rowland
Holt
&
al'
.
Page
111
-
24.
Dominus
Rex
versus
Walcort
.
Page
127
-
25.
Sir
Evan
Lloyd
Bar.
and
Dame
Mary
his
Wife
,
and
Sidney
Godolphin
and
Susan
his
Wife
,
versus
Richard
Carew
Bar.
an
Infant
,
the
Son
and
Heir
of
Sir
John
Carew
Bar.
deceased
.
Page
137
-
26.
Sir
William
Morley
Knight
of
the
Bathe
,
versus
Peter
Jones
.
Page
140
-
27.
Sir
Edward
Hungerford
and
John
Hill
Executors
and
Devisees
of
Sir
William
Basset
,
versus
Edward
Nosworthy
.
Page
146
-
28.
Sir
Simon
Leach
&
al'
,
versus
John
Thompson
Lessee
of
Charles
Leach
.
Page
150
-
29.
Henry
Earl
of
Lincoln
,
versus
Samuel
Roll
&
al'
.
Page
154
-
30.
John
Fox
Gen'
,
versus
Simon
Harcourt
Esq
;
Page
158
-
31.
Henry
Lord
Bishop
of
London
and
Dr.
Birch
,
versus
Attorney
General
pro
Domino
Rege
.
Page
164
-
32.
Dominus
Rex
versus
Reginald
Tucker
.
Page
186
-
33.
Joseph
Eastmond
Executor
of
Hester
Eastmond
and
Samuel
Neyle
,
versus
Edwyn
Sands
Clerk
.
Page
192
-
34.
Magdalen
Foubert
versus
Charles
de
Cresseron
.
Page
194
-
35.
Philip
Jermin
and
Sarah
his
Wife
,
versus
Mary
Orchard
.
Page
199
-
36.
Bennet
Swayne
versus
William
Fawkner
and
John
Lane
Executors
of
B.
M.
Page
207
-
37.
Dominus
Rex
versus
Episcop'
Cestr
'
and
Richard
Pierse
.
Page
212