The King versus the Bishop of Rochester and Sir Francis Clark .

IN a Quare Impedit a special Verdict was found , Quare Impedit . Mod. Rep. 195. Grant of the King , where the first Clause is certain , and a mistake in another , yet the Grant is good . wherein the Case was thus :

The Mannor of Laburn , to which the Advowson of the Church of Laburn was appendant , did by the dissolution of Monasteries Anno * * 31 H. 8. c. 13. 31 H. 8. come to the King , who granted the said Mannor to the Archbishop of Canterbury ( excepting the Advowson ) and afterwards the said Archbishop regrants the same to King H. 8. and the Advowson of the Church of Laburn aforesaid ; and then King H. 8. grants the said Mannor of Laburn & Advocation̄ Ecclesiae de Laburn dicto Archiepiscopo , ( having named him before ) dudum spectan̄ , and which was regranted to the said King by the said Archbishop , and lately belonging to the Abbot of G. &c. adeo plene as the said Archbishop or Abbot had it , or as it was in our hands by any ways or means howsoever .

And whether the Advowson passed by this last Grant was the Question .

Three Iustices ( absente North ) gave Iudgment for the Defendant , that the Advowson did pass by this Grant .

Iustice Ellis in his Argument said , That it was plain that when the Mannor came to H. 8. the Advowson was appendant , but when it was granted to the Archbishop , and the Advowson excepted , it then became in gross , and therefore could never afterward be appendant : James and Johnson 's Case Postea . As an Aere once disunited from the Mannor can never after be part of that Mannor , Liford's Case , 7 Co.

And 't is as plain , that before the Statute de Praerogativa Regis cap. 15. That in the ease of the King , by the Grant of a Mannor , the Advowson though not named passed , much more if it be named in any part of the Deéd , as if it be in the Habendum though not in the Premisses ; but that must be intended of an Advowson appendant . 10 Co. 63.

And though Advowsons are excepted by that Statute , yet in case of Restitution an Advowson will pass by the Words Adeo plene & integre , though not named .

In this Case there are general Words and the same as in * * 10 Co. 63. Postea . Atturney General against Turner . Whistler's Case ; yet this differs from that , for here 't is granted adeo plene , as the Abbot had it ; by those Words it doth not pass , for then it was appendant , but now it is in gross ; and if the King intended to pass an Advowson as appendant when 't is in gross , the Grant is void , Hob. 303.

In Whistler's Case there are the Words Adeo plene , as in this , and the Advowson was appendant still , but yet there are general Words here that will pass it : Adeo plene as the Archbishop had it , will not serve , because he never had it ; neither will Adeo plene as the Abbot had it pass this Advowson , because he had it in gross ; but Adeo plene as the King had it by any ways or means whatsoever , those general Words are sufficient to pass it .

The King grants the Mannor and the Advowson of the Church of Laburn , which is certain and by particular Name , part of what follows ( as spectan' to the Archbishop ) is false , for it never belonged to him because it was excepted in the Grant of the Mannor to him , but the first discription being full and certain the falsity of the other shall not avoid the Grant , especially when the King is not deceived in his Title nor in the Value , and when there is a certainty of the thing granted .

Some false suggestions may make his Grant void , as if he grant the Mannor of D. reciting that it came to him by Attainder , when it came by Purchase , Hob. 229.

Lane 11. But if the mis-recital concerns not the Kings Title or Profit , it doth not vitiate the Grant , 10 H. 2. 4. Sir John Lestrange's Case , where the King by Office found had the Wardship of a Mannor , and makes a Grant thereof reciting Quod quidem Manerium in manus nostras seisit̄ &c. which was not true , yet the Grant was held good , because it was only to make that certain which was certain enough before by a particular description . So in Legat's Case , 10 Co. 113. wherein is cited the Case of the Earl of Rutland and Markham , to whom the Queén had granted the Office of Parkership , &c. quod quidem Officium the late Earl of Rutland habuit , when in truth the Earl never had it before , yet the Grant was held good .

So also if he grants for and in consideration of Service done , or Mony paid , if false , it avoids not the Grant , because such Considerations ( when past ) are not material whether they are true or false , Cro. Jac. 34.

If the King let the Mannor of D. of the value of 4 l. per annum , if it be more it is ill , but if he let it by a particular Name , and then adds , Quod quidem Manerium is of such a value 't is good , because the * * 2 Cro. 34. Quod quidem is but the addition of another certainty ; so here the Advowson is granted by special and express Name , but the Clause that follows , Dudum spectan̄ to the Archbishop , implies a mistake ; and had there beén no more in the Case this falsity would never have avoided the Grant .

But when the King had enumerated several ways by which he thought he might be intitled , at last as a proof that he was resolved to pass it , he adds these Words , viz. as it is in our hands by any way or means whatsoever .

Atkins Iustice of the same Opinion : Where the thing is not granted by an express Name , there , if a falsity is in the description of that thing , the Grant is void even in the case of a common person , as if he grant Lands lately let to D. in such a Parish , and the Lands were not let to D. were also in another Parish , the Grant is void , because the Lands are not particularly named , Anders . 148. Heywood's Case .

A fortiori in the Case of the King , as if he grant omnia illa tenementa situata in Wells , when in truth the Lands did not lie there , for this reason the Grant was void , because it was general , and yet restrained to a particular Town , and the Pronoun ( illa ) goes through the whole sentence .

But if a thing is granted by an express Name , though there is a Falsity in the description , yet in the Case of a common person 't is good .

As when the Subchantor and Vicars Choral of Lichfield made a Grant to Humfrey Peto of 78 Acres of Glebe , and of their Tythes Predial and Personal , and also of the Tythe of the Glebe , All which late were in the occupation of Margaret Peto , which was not true , yet the Grant was adjudged good ; for the Words All which are not Words of restriction unless when the Clause is general and the Sentence entire , but not when it is distinct , Cro. Car. 548.

But in the Case of the King , if there is a falsity by which the King hath a prejudice , and a Falsity upon the suggestion of the Party , it will make the Grant void , but every Falsity will not avoid his Grant if it be not to his prejudice .

But let the Falsity in this Case be what it will the Adeo plene as it is in our hands helps it ; and though it hath been objected , that these Words will not help the Grant , because nothing new is granted , that being done before ; 't is true there is nothing new granted , but that which was before was not well granted till this Clause came which supplies and amends the Falsity ; for now 't is apparent that the King intended to pass the Advowson as well as the Mannor , and therefore at last grants it , be his Title what it will .

In all Cases where the Kings Grant is void because of any mistake in his Title , 't is to be intended the King would not make the Grant unless the Title were so as 't is recited , but here 't is apparent the King resolved to grant it .

Judgment . Wyndham Iustice agreéd , and Iudgment was given accordingly .

Wilcox versus the Servant of Sir Fuller Skipwith .

Replevin . Justification for an Herriot . IN Replevin the Defendant justifies the taking of the Cattle for a Herriot which he alledges to be due upon every Alienation without notice .

The Plaintiff denies the Herriot to be due upon Alienation . And thereupon Issue is joyned .

The Special Verdict finds the Tenure to be by Fealty and the Rent of 3 s. 1 d. ( though the Defendant in his Avowry had alledged the Rent to be 12 s. 4 d. and the Plaintiff in his Barr to the Avowry had confessed it to be so ) Suit of Court and an Herriot , which was payable upon every Alienation with or without notice .

And whether upon this Special Verdict Iudgment should be given for the Plaintiff or the Avowant was the doubt .

Ex parte Def. Vpon the point of Pleading Serjeant Jones for the Defendant said it had béen objected that the Avowry was ill , for ut Ballivus , &c. bene cogn̄ captionem in praedicto loco , &c. but doth not say tempore quo , &c. for a Herriot ( tempore quo , &c. being left out ) and so doth not say a Herriot was due at the time of the taking of the Goods .

But he answered , That that was usual and common , and of that Opinion were all the Iustices , and so it was held good .

It was farther objected , That here is a variance between the Avowry and the finding in the Special Verdict ; The Avowant says that the Rent was 12 s. and 4 d. and the Iury find that it was but 3 s. and 1 d. He also saith , that the Herriot was due upon every Alienation without notice , and they find it due with or without notice .

But to that he said , the Iury have doubted only of the last Point , for the Avowry was not for Rent but for the Herriot , so the substance is whether he had good cause to distrein for the Herriot or not . Postea .

And as to that , the Substance is sufficiently found , like the Case in Dyer 115. Debt upon Bond for performance of Covenants , and not to do waste , the Breach assigned was that the Defendant felled twenty Oakes , who pleads Non succidit viginti quercus praed' nec earum aliquam , the Iury find he cut down ten , yet the Plaintiff recovered ; for though the intire Allegation of the Breach was not found , because ten did not prove the issue of twenty literally , yet the Substance is found , which is sufficient to make the Bond forfeited .

So in Trespas , where the Plaintiff makes a Title under a Lease which commenced on Lady-day , Habendum à Festo , &c. and the Issue was non demisit modo & forma , the Iury found the Lease to be made upon Lady-day , Habendum à confectione , and so it commenced upon Lady-day , and not à Festo , &c. which must be the day after the Feast , yet 't was adjudged for the Plaintiff , because the * * Moor 868. Yelv. 148. Substance was whether or no the Plaintiff had a Lease to intitle himself to commence an Action , Hob. 27.

But in Ejectment or Replevin such a Declaration had been naught , because therein you are to recover the Term , and therefore the Title must be truly set out , and in Replevin you are to have a Retorn̄ habend ' , but in Trespas 't is only by way of excuse . Sed quaere .

A second Reason is because both Plaintiff and Defendant in pleading have agréed the matter in this particular , for both say the Rent was 12 s. and 4 d.

'T is a Rule in Law , That what the Parties have agreed in pleading shall be admitted though , the Iury find otherwise , 2 Ass. pl. 17. 18 E. 3. 13. b. 2 Co. 4. Goddard's Case . Iurors are not bound by Estoppel ad dicend' veritatem , for they are sworn so to do unless the Estoppel be within the same Record , but here that which is confessed cannot be matter of Issue not being Lis contestata .

It has beén objected , that in 33 H. 6. 4. b. the Plaintiff brought Debt for 20 l. the Iury found the Defendant only owed 10 l. and the Plaintiff could never recover .

But that must be intended of a Debt due upon Contract , and there the least variance will be fatal , 38 H. 6. 1.

As to the second variance 't is not material , for 't is not true as the Avowant hath said , for if the matter in issue be found , the finding over is but surplusage ; both the Verdict and the Avowry agree that the Defendant may take a Distress in case of Alienation without notice : And so he prayed Iudgment for the Defendant .

Judgment for the Defendant . The Court were all of Opinion that Iudgment should be given for the Defendant ; for what is agréed in pleading , though the Iury find contrary , the Court is not to regard , and here the substance of the Issue as to the second Point is well found for the Defendant .

Iudge Atkins told Serjeant Wilmot , who argued for the Plaintiff , that he had cited many Cases which came not up to the matter , and so did magno conatu nugas agere , for which reason I have not reported his Argument .

Smith versus Feverel .

Case for surcharging a Common . THE Plaintiff brought an Action on the Case against the Defendant , setting forth that he had right of Common in A. and that the Defendant put in his Cattel , viz. Horses , Cows , Hogs , &c. ita quod Communiam in tam amplo modo habere non potuit .

The Defendant pleads a Licence from the Lord of the Soil to put in Averia sua , which was agreéd to comprehend Hogs as well as other Cattle in the most general sense .

The Defendant demurs , and after Argument the Court were all of opinion that Iudgment should be given for the Plaintiff , because the Defendant in his Plea hath not alledged that there was sufficient Common left for the Commoners , for the Lord cannot let out to pasture so much as not to leave sufficient for the Commoners .

And though it was objected , that the Plaintiff might have replyed specially and shewn there was not enough , yet it was agreed by the Court that in this Case he need not , because his Declaration to that purpose was full enough , and that being the very Gist of the Action the Defendant should have pleaded it .

It was held indéed that in an Action upon the Case by the Commoner against the Lord , he must particularly shew the Surcharge ; but if the Action be brought against a Stranger such a shewing as is here is sufficient .

North Chief Iustice said , and it was admitted , that the Licence being general ad ponend' averia it should be intended only of Commonable Cattel and not of Hogs ; Sed contra , if the Licence had been for a particular time .

Anonymus .

A Man devises Land to A. his Heir at Law , Devise . and devises other Lands to B. in Fee and saith , If A. molest B. by Suit or otherwise he shall lose what is devised to him , and it shall go to B. The Devisor dies , A. enters into the Lands devised to B. and claims it , the Court were of Opinion that this Entry and Claim is a sufficient breach to entitle B. to the Land of A.

It was also agreed that these words , If A. molest B. by Suit , &c. make a Limitation and not a Condition , Pl. Com. 420. the Devise being to the Heir at Law ; for if it were a Condition , it descends to him and so 't is void , because he cannot enter for the breach , 3 Co. 22. Cro. Eliz. 204. Wellock and Hamonds Case . Paying in the case of the eldest Son makes a Limitation , Owen 112.

So in the Case of Williams and Fry in an Ejectione firmae in B. R. lately for Newport-House . A. deviseth to his Grand-daughter , Provided and upon Condition that she marry with the consent of the Earl of Manchester and her Grandmother , 't is a Limitation .

2dly , It was agreed , That an Entry and Claim in this Case was a sufficient molestation , for when the Heir enters and claims generally it shall be intended as Heir , and the words , that he shall not molest by Suit or otherwise , are to be intended occasione praemissorum .

3dly , There is no néed of Entry to avoid an Estate in case of a Limitation , because thereby the Estate is determined without Entry or Claim , and the Law casts it upon the Party to whom it is limited and in whom it vests till he disagrées to it .

A. devises Land to B. and his Heirs and dies , 't is in the Devisee immediately , but indeed till Entry he cannot bring a possessory Action , as Trespass , &c. Pl. Com. 412 , 413. 10 Co. 40. b. where a Possession vests without Entry a Reversion will vest without Claim . Nota.

Curtis versus Davenant .

Prohibition A Bishop cannot appoint Commissioners to tax the Parish for building or repairing a Church . IN a Prohibition the Question was , whether if a Church be out of repair , or being so much out of order that it must be re-edified whether the Bishop of the Diocess may direct a Commission to impower Commissioners to tax and rate every Parishioner for the re-edifying thereof : The Court did unanimously agree such Commissions were against Law , and therefore granted a Prohibition to the Spiritual Court to stop a Suit there commenced against some of the Parishioners of White-Chappel for not paying the Tax according to their proportions .

It was agréed that the Spiritual Court hath power to compel the Parish to repair the Church by their Ecclesiastical Censures , but they cannot appoint what Sums are to be paid for that purpose , because the Churchwardens by the consent of the Parish are to settle that .

As if a Bridge be out of repair , the Iustices of Peace cannot set Rates upon the persons that are to repair it , but they must consent to it themselves .

These Parishioners here who contribute to the charge of repairing the Church may be spared , but as for those who are obstinate and refuse to do it , the Spiritual Court may proceed to Excommunication against them ; but there may be a Libel to pay the Rates set by the Church-wardens .

Nurse versus Yearworth in Cancellaria .

Bill in Cancellaria for the Assignment of a Term. RIchard Yearworth being seised of Lands in Fee makes a Lease to the Defendant Christopher Yearworth for 99 years to such use as by his last Will he should direct .

Afterward he makes his Will in writing ( having then no Issue but his Wife grossement enseint ) and thereby devises the same Land to the Heirs of his Body on the Body of his Wife begotten , and for want of such Issue to the said Christopher the Defendant and his Heirs .

Richard dies and about a month after a Son is born , the Son by vertue of this Devise enjoys the Land , but when he attains his full age of one and twenty years , he suffers a Common Recovery , and afterwards devises the Land to the Complainant Nurse , and dies .

The Complainant exhibits a Bill against the Defendant to have the Lease for 99 years assigned to him , and whether he should have it assigned or not , was the Question .

1. It was pretended that an Estate in Fée being limited by the Will to Christopher , who was Lessee for 99 years , the Term is thereby drowned .

2. It was objected , that the Devise by Richard to the Infant in ventre la mere was void , and then the Complainant , who claimed by a Devise from the Posthumus , could have no Title , but that the Defendant to whom an Estate was limited by the Will of Richard in Remainder should take presently .

But notwithstanding what was objected the Lord Keeper Finch decréed that the Lease which was in Trust , should be assigned to the Complainant Nurse .

He said that at the Common Law without all question a Devise to an Infant in ventre sa mere of Lands devisable by Custom was good , so that the doubt arises upon the Statute of H. 8. Roll. Abr. tit . Devise 609. lit . H. pl. 2. Godb. 385. 11 H 6. 13. dubitatur . which enacts , That it shall be lawful for a Man by his Will in writing to devise his Lands to any person or persons , for in this Case the Devisée not being in rerum naturâ , in strictness of spéech is no person , and therefore it hath beén taken that such a Devise is void , Moor's Rep. and 't is left as a Quaere in the Lord Dyer 304.

But in two Cases in the Common Pleas , one in the time when the Lord Chief Iustice Hale was Iudge there , the other in the Lord Chief Iustice Bridgman's time , it hath been resolved that if there were sufficient and apt words to describe the Infant , though in ventre sa mere , the Devise might be good .

But in the King's Bench the Iudges since have been divided upon this Point , that as the Law stands now adjudged , this Devise in our Case seems not to be good : But should the Case come now in question , he said he was not sure that the Law would be so adjudged ; for 't is hard to disinherit an Heir for want of apt Words to describe him ; and 't is all the reason in the World , that a Mans intent , lying in extremis , when most commonly he is destitute of Council , should be favoured .

Whitrong versus Blaney .

Process into Wales . THIS Term the Court delivered their Opinions in this Case , North Chief Iustice , who had heard no Arguments herein , being absent .

The Case was this : The Plaintiff upon a Iudgment in this Court sues out a Scire facias against the Heir and the Ter-tenants , which was directed to a Sheriff of Wales ; the Defendant is returned Tertenant , but he comes in and pleads Non tenure generally , and traverses the Return ; the Plaintiff demurs .

Two Points were spoke to in the Case .

1. Whether the Defendant can traverse the Sheriffs Return ? And all the three Iustices agreéd that he cannot .

2. Whether a Scir̄ Fac̄ , Ca. Sa. Fi. Fa. &c. would lie into Wales on a Iudgment here at Westminster , And they agréed it would well lie .

An Indictment may be removed . 2 Cro. 484. Ellis Iustice agreéd , If Iudgment be given in Wales it could not be removed into the Chancery by Certiorari , and sent hither by Mittimus , and then Execution taken out upon that Iudgment here , because such Iudgments are to be executed in their proper Iurisdictions , and such was the Resolution of the Iustices and Barons , Cro. Car. 34.

But on a Iudgment obtained here Execution may go into Wales . No Execution can go into the Isle of Man , because 't is no part of England , but Wales is united to England by the Statute of 27 H. 8. c. 26. And therefore in Bedo and Piper's Case , 2 Bulstr. 156. it was held that such a * * Het . 20. 2 Cro. 484. The Opinion of Dodderidge . Roll. 395. 2 Sand. 194. Twisden denied it . Writ of Execution goes legally into Wales .

He said he had a Report of a Case in 11 Car. 2. where a Motion was made to quash an Elegit into Wales ; but it was denied , for the Court agréed the Writ well issued .

Some have made a difference between the King's Bench and the Common Pleas , as if an Execution might go into Wales upon a Iudgment obtained in the King's Bench , but aliter if in the Common-Pleas .

But the Law is the same in both Courts , Mich. 1653. betwéen Wyn and Griffith this very Case came in question , and there it was held that Execution goes into Wales as well as into any part of England upon a Iudgment in the Courts of Westminster .

In 2 Bulstr . 54. Hall versus Rotheram it was held that a Ca. sa . shall go into Wales against the Bail upon a Iudgment recovered in the Kings-Bench here against the Principal .

Of the same Opinion was Iustice Atkins , and that the Defendant cannot averr against the Sheriffs Return , nor a Bishops Certificate ; and the true reason is given by my Lord Coke in 2 Inst. 452. for the Sheriff is but an Officer and hath no day in Court to justifie his Return .

In special Cases Exception may be made to the Sheriffs Return ; but this is by reason of the special provision that is made for the doing of it by the Statute of W. 2. cap. 39. as in case too small Issues be returned , or that the Sheriff return a Rescous ; the Party in his Averment must alledge of what value the Issues are .

2dly . That notwithstanding the common saying Breve Domini Regis non currit in Walliam , yet a Fi. Fa. Ca. Sa. or any Execution whatsoever may issue into Wales upon a Iudgment obtained here : And to prove this he considered , 1. How Wales formerly stood in relation to England . 2. How it stood before it was united by the Statute of H. 8. 3. How it now stands since the Vnion .

1. And as to the first of these , England and Wales were once but one Nation , they used the same Language , Laws and Religion , and so continued till the time of the Roman Conquest , before which they were both comprehended under one name , viz. The Isle of Great Britain .

But when the Romans came , those Britains , who would not submit to their yoak , betook themselves to such places where they thought themselves most secure , which were the Mountains in Wales , and from whence they came again , soon after the Romans were drove away by their dissentions here , and then these Britains enjoyed their ancient Rights , as before .

After this came the Saxons and gave them another disturbance , and then the Kingdom was divided into an Heptarchy ; and then also , and not till then , began the Welsh to be distinguished from the English ; but yet at that time they had great Possessions in England , viz. Gloucester , part of Worcester , Hereford , Shrewsbury , which they kept till King Offa drove them out of the plaine Countries , and made them fly for shelter into those Mountainous parts in Wales , where they now continue , Cambden 15. And 't is observable that though Wales had Kings and Princes , yet the King of England had Superiority over them , for to him they were Homagers , Cambden 67. The Word Princeps implying a Subordinate Dignity , Selden's Titles of Honor 593.

2dly . During the time of the Separation Wales had distinct Laws and Customs from those in England , whence that saying took its effect , viz. Breve Domini Regis non currit in Walliam ; yet the Parliament of England before that time made Laws to bind Wales ; As the Act of 25 Edw. 1. for confirmation of the old great Charter of the Liberties of England and of the Forests , which enacts , That certain Duties shall be paid for every Sack of Wool , &c. exported out of Wales , 2 Inst. 531.

So the Statute 3 Edw. 1. cap. 17. which gives remedy if a Distress be taken and detained in a Castle , and upon deliverance demanded by the Sheriff , if the Lord of the Castle should refuse , he might raise the Posse Comitatus , and beat down the Castle ; and if such detainer or refusal be in the Marches of Wales , the King , as the Statute saith , is Soveraign Lord of all , and shall do right upon complaint ; and the Conquest was not made till 9 E. 1. so that at that time likewise though Wales had Princes of its own , Vaugh. 400. yet the Kings of England were Sovereigns to those Princes ; and though they had Laws of their own , yet were they bound by those that were made here ; and though their Princes had ordinary remedial Writs , yet in Cases extraordinary the Kings Writs here run into Wales ; and it was not for want of power , but because there was no need , for that it went so seldom ; and when the Kings Writ did issue it was necessary to direct it to the Sheriff of an English County , for Wales was not then divided into Shires ; but afterwards by the Act called Statutum Walliae 12 Edw. 1. * * 2 Inst. 195. 4 Inst. 239. it was divided into six Counties , and then again by the Act of 27 H. 8. cap. 26. it was divided into the other six Counties .

But during this time there were frequent Hostilities between England and Wales , until by the Conquest in Edw. 1. time they were united .

'T is pretended that H. 3. Father to Edw. 1. was the Conqueror , and 't is probable something considerable might be done in his time ; yet the absolute Conquest of the whole Dominion was made by Edw. 1. in whose time the aforesaid Statutum Walliae was made , Vaugh. 414 , 415. and after that the Statute of 27 H. 8. to compleat the Vnion , the end of which is declared to bring the Subjects of both to an entire Vnity ; and that it may be done with effect , 't is enacted , That the Laws of England be executed there ; ● Bulst. 54. for which reason it is held in 5 Co. Rep. Vaughan's Case , fol. 49. that the Statutes of Jeofails do extend to Wales ; and in 2 Bulstr. 156. * * This was a Resolution upon no Debate . the Sheriff of Radnor upon a Scire Fac̄ directed to him , returned Breve Domini Regis non currit , &c. and was amerced 10 l. for his false Return , Vide 19 H 6. 20. Fitzherb . Trial pl. 40. tit . Jurisdiction , 13 E. 3. 23 , 24 , 34. idem , Brief 621. & Assize 382.

It was objected , That by express provision in 1 E. 6. cap. 10. Exigent and Proclamations shall be awarded out of the Courts of Westminster into Wales , which if they might before , this Law was then needless .

'T is true , the Opinion of the Parliament seems to be , that had it not beén for this particular provision , such Proclamations might not have issued ; for by 6 H. 8. cap. 4. Vaugh. 414. such Proclamations went but to the next County , but they do not declare so , and perhaps they might ground themselves upon that vulgar Error , Breve Domini Regis non currit in Walliam , which is not true unless the Clause be limited to original Writs only .

Objection . That the Statute of 5 El. cap. 23. which enacts , that the Excommunicato Capiendo shall be returned in the Kings-Bench , and takes notice that this Writ is not returnable into that Court from Wales , and therefore orders that the Significavit shall be sent by Mittimus out of the Chancery to the Chief Iustice there , and gives them power to make Process to inferior Officers returnable before them at their Sessions for the due Execution of this Writ , all which had beén in vain , if the Capias might go into Wales before the making this Act.

Answ. But that is an original Writ , and so comes not up to this Case .

Wyndham Iustice agreed in omnibus , and said that the Statute of 1 Ed. 6. was very needful ; for if a Man should be outlawed , if the Process should be sent to the Sheriff of the next adjoining County in England , he could not have any notice that he was outlawed , and so could not tell when oulawed or at whose Suit .

Vaughan late Lord Chief Iustice held strongly , Vaugh. 395. 2 Saund. 194. that no Execucution would go into Wales when this Case was argued before him ; and of the same Opinion was Iustice Twisden .