England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

		Trinty 14 Jac

1. In Chancery there was a suit commenced by me, as Attorney-General, in the behalf of the King's Majesty, and the Lord Hunsdon as the King's farmer for the manor of West Harsley and Asalby in the county f York, against the Countess Dowager of Arundel, and the Lord William Howard and his lady; which cause coming to hearing after I was Chief Justice of the Common Pleas, my Lord Chancellor called to his assistance in the hearing of it, the Lord Chief Justice Coke and my self. This cause hung long, and had many hearings and briefs delivered, and after long consideration was this term, with uniform consent of the Lord Chancellor, us the Judges, and Master of the Rolls, decree for the King: wherefore the decree is, with the reasons therof, advisedly and exactly penned and entred, as of this Trinity term 14 Jac.

2. Of this decree therefore at large I will say nothing but this, that the reason of the suit in Chancery was not for want of good title at law (for it laid and affirmed the Kings's title to be meerly by law, by the attainder of Francis Dacres, whose land the bill laid the land to be, of an estate in tail) but the cause of suit was made, that the deeds whereby the estate was to come to Francis Dacres were not extant, but very vehemently suspicious ti have been suppressed and with-holden by some under whom the defendants claimed, and therefore in the end the decree ran, that the King and his heirs, and his said farmer, should hold and enjoy the land 'till the defendants should produce the deeds, and the Court thereupon take further consideration and order.

3. But two points fell out in this case very worthy the observation.

4. The first shortly thus, anno 35 H. 8. there was great controversie between William Lord Dacres and his children on the one part, and the heirs general of Sir James Strangways, for the lands of the same Strangways. Whereupon in June 35. H. 8. the King made an award between them, which award because it culd not state the lands accordingly, afterwards in March, 35 H. 8. an Act of Parliament was made for ratification of the King's award, which was extant in the Rolls of Parliament, and now was certified under the Great Seal of England.

5. The excpetion to disannul this Act of Parlliament was thus: the bill passed first in the Upper House, by the consent of the Lords, which was sent down into the Lower House, and from thence was returned with this indorsment of superscription on the body of the bill, a ceste bille les Commons sont assentus avec la provision annexe: but there is no provision extant upon record. But that very bill with that superscription or indorsement, and with the regal assent, and without any proviso indeed is filed with the rest of the bills and the King's assent unto it and labelled with the rest, whereunto the Great Seal is set, as the course is in Private Acts, which are not enrolled without special suit, as General Acts are; for General Acts are always ijnrolled by the clerk of the Parliament, and delivered over into the Chancery; which inrollment in the Chancery makes them the original record (as it was resolved in John Stub's case) but in Private Acts the very body of the first bill filed and sealed, as aforesaid, and remaining with the clerk of the Parliament, is the original record.

6. The principal case standing thus, the defendants counsel press the joournal book of the Upper House, for there was no journal book kept for the Lower House 'till the time of E. 6. Concerning this bill which is thus in divers parts: quarto Martii prima vice lecta est billa concerning the King's award for controversies between the Lord Dacres and the heirs general of Sir James Strangways the younger, &c. Cui quidem billæ proceres assenserunt. Item hodie missa est ad domum communem per Regium attornatum & solicitat. billa, &c. And after 18 Marti hodie allata est a domo communi billa, &c. cum porvisione eidam annexa. quæ prima & secunda vice lecta est, hodie commissa est Regio attornato billa &c. And after 28 Mart. remissa est in domum communem per attornatum Regium billa, &c. hodie cum procerum consensu & assensu cancellata est proviso pro hæredibus masculis Jac. Strangways mil. billæ cuidam cui titulus est, &c. See these three Acts, the sending of it to the Lower House, the bringing it from thence, and the cancelling of the porviso, all on this one day 18 Mar. upon which they infer, that the Commons eing assented with provision had not assented to this Act without provision, the same being cancelled by the Lords, of their own heads. ~And so it is not an Act of both Houses, as it ought to be.

7. But it is clearly resolved by us all, that this exception was of no value and consider it first by the Act itself without the jhournal , next by the journal.

8. The Act it self hath no mention of a proviso, but in the indorsement as before, wherin what the proviso was (if any were) appears not. Why then if there were indeed no proviso, the assent of the Lower House was absolute and perfect; for the referring of it self to that, that was not, hurts not, and the mentioning of it doth not prove necessarily that there was such a proviso, no more, but rather less than in The Earl of Leicester's Case, Plo. 390. the mention and recital of his attainder did convince the truth of it.

9. If there were a proviso, yet it might be sundry ways salvable, though it be not extant, for first, if it were lost by the fault of negligence of the keeper or clerk of the Parliament, that must not avoid the whole Act. But suppose that a proviso were cancelled by the Lords, only, yet it might be such a piece by itseld, as this Act that remains might be perfect and compleat without it.

10. And that three ways specially:

11. Because it might be as a part by it self of a several effect from the rest of the Act, though all were not in one chapter of continent of the Act, as it is resolved in Dive and Manningham's case, Plo. t. 5. upon the stat 23 H. 6. of Sheriffs.

12. It might be a proviso meerly idle, elusory, or as it is termed flattering, Plo. 564. in the case of Unton upon the Statute of Wills, and the Duke of Norfolk's attainder.

13. Thirdly, the matter intended by this proviso might be so sufficiently provided for by the Act it self before, as this were mere surplusage, and then the omission of it could not prejudice. And to that opinion inclines 33 H. 6. 17. And that may seem to be the truth of this, for the proviso seems to have been only to preserve the right of the heirs males of Strangways, whereas there was a general saving in the Act as it came from the Lords, which served them as well as others, and that perhaps might be informed to the Lower House by the King's attorney the 28 of March, when he carried it to them, as is said; which might be the reason of the cancelling of it.

14. So this is the state of this Act, as it appears any way in the record; out of which nothing can be inforced to annihilate the Act. And it doth not apppear that the Lords did cancel the proviso, but that it was cancelled the 28 day with their consent, which 28 day it was in the Commons House, and brought from thence ut super, so it might be cancelled there, and the Lord's after consent to it. And all true and proper. And note, that there is a journal of that time of the House of Commons, and the Lords enter not in their journal the Acts of the Commons. Then take the journal, it hath no mention of the effect of the proviso, but in one place, and that is only by way of a sum, not of a full and formal sentence. For if the proviso were indeed in no other form, than is mentioned proviso pro hæredibus masculis, &c. it were senseless and void, and no man mauy divine what it was to the avoiding of an Act otherwise perfect. But now suppose that the journal were every way full and perfect, yet it hath no power to satisfie, destroy or weaken the Act, which being a high record must be tried only by it self teste meipso. Now journals are no records, but remembrances for formus of proceedings to the record, they are not of necessity, neither have they always been: they are lie the dockets of the pronotaries, or the particular to the King's patents. Co. lib. 2. 34. b. and 16 Eliz. 331 of particular. The last intended Parliment 10 Jac. if you be judged by the journal, it was a large and well occupied Parliament, yet because no ~At passed, nor record is of it, it was resolved by all the Judges to be no Parliament.

15. The journal is of good use for the observation of the generalty and materialty of proceedings and deliberations as to the three readings of any bill, the intercourses between the two Houses, and the like, but when the Act is passed, the journal is expired. And in this journal there appears but one reading of the bill in the Upper House where it passed, which is unlikely. But if the record of the Act it self carry its deaths wound in it self, then it is true that the parchment, no nor the Great Seal, either to the original Act, or to the exemplification of it will not serve as in the 4 H. 7. 18. where the Act was by the King with the consent of the Lords (omitting the Commons) and was judged therefore void. And he that observes the case 33 H. 9. 17. which was the only case relied upon by the defendant's counsel, shall find it so; and upon this rule the doubt to be conceived, scil. upon the Parliament rool it self, not upon the journal.

16. For the case was, that Sir John Pilkington being charged with a rape, an Act of Parliament passed, that he should be proclaimed, and if he appeared no at the day, he should be attained of the fact, and pay a fine to the party grieved. Now being taken and brought into the King's Bench, he alleged that the Act (whereof transcript was sent by mittimus out of the Chancery into the King's Bench) was not a sufficient Act of Parliament in law, for the Act began with the Commons and there passeed, and was indorsed scit haile aux seignieurs, but where the bill was, that Sir John Pilkington should answer before Pentecost next, the Lords indorsed the bill thus.

17. The Lords granted ar assented that he should answer before Pentecost 1452. which was the Pentecost twelve month. For the Pentecost next ensuing, taking this bill to pass as of the first day of the Parliament, did incour sitting the Parliment, for the Parliment begun before Pentecost 1451. and the Lords gave Pentecost 1452. and so said the defendant, there these two differing, the bill should have been returned to the Commons to allow or not. Now Prisot and Markham ask'd if the bill came into the House after the Pentecost that incurred during the Parliament, as conceiving that then Pentecost next ensuing mentioned in the bill of Commons, should not have been in law that Pentecost, but the same the Lords made a year after, and so needed no return to the Commons for a new consent, but if è converso, then otherwise. But in this case it is plain, that the difference appeared in the body of the roll of Parliament, not by a journal book. And the very certainty of the difference appeared also in the roll, Which appears not so much as in the journal in this our case.

18. And yet Fortescue Chief Justice of the King's Bench, after all done resolved in that case, 33 H. 6. 17. that it was an Act of Parliament, and they would be well advised before they annulled an Act of Parliament, peradventure it were best to refer it ti the next Parliament.

19. The other great point resolved in this present case was, that whereas this title between the King in the right of Francis Dacres stood partly upon the said Act of Parliament, and partly upon a feoffment made by William Lord Dacres, anno 4 and 5 Phil. & Mar. and a re-infeoffment back again, whereby the State was to grow to Francis Dacres, which feoffment the defendants said was not lawfully executed, and that point had been examined before the Council at York, in the eighth year of the late Queen Elizabeth; the defendants required the use of the said depositions, whcih the King's counsel contended ought not to be granted unto them, and so the whole Court resolved for divers reasons contained particularly, and at large in the decree; which were these.

20. Because the suit was by English bill in the very nature of a rplevin to try the title of freehold of a whole barony in effect, without any mixture of equity of all.

21. Because it was between strangers to the remainder of Francis Dacres, by which the King claims, for there was three sons of William Dacres stated before it could come to Francis.

22. Because the point put in issue was an estate tail, supposed by Thomas Lord Dacre (the eldest son of William Lord Dacre then dead) in the time of H. 6. whereby he pretended the feoffment should be as by a remitter avoided, so the feoffment was not denied by admitted, and yet the tail was not a whit examined nor proved, but all bent to destroy the feoffmet, so that it was said, that those depositions smelt of practice, and upon motion ought to be suppressed, and therefore ought no here to be allowed.

23. Because the originals of those depositions at York were all gone, and there were also no exemplifications of them but in the hands of the defendants, so that the King must fight with weapons assigned him by parties adversary.

24. That this the very point had been by the late Queens commandment very carefully examined in Chacery 28 Eliz. only upon petition, without bill and answer, between Francis Dacres the petitioner, and Earl of Arundel and his countess, and the Lord William Howard and his lady defendants, as they are now, wherein all the interrogatories were appointed to be perused by the Cheif Justice, and the examinations made not by the examiner, but by certain doctors of law. At which time divers of these witnesses that had been examined 8 Eliz. were examined.

25. These depositions were little questioned by the defendants counsel, but were clearly allowed and read by the Court, though they were without bill and answer, for they were by special direction in that cause for expedition.

26. They were with such careful proceedings and reverend persons as before.

27. They were by consent of parties, and the then defendants examined very many witnesses therein. But out of this curiosity it was inforced, that the other depositions taken, no man know how, were then either not known, or not regarded, nor ought now to be allowed.

28. But the great and main reason that they were not allowed to be read here was, because the Court where they were taken was not holden competent, in a case of this nature, and for depositions to be read in other Courts.

29. And we all held it dangerous to give a precedent in this Court with such assistance, and in such a case. And though it did not appear whether their instructions then bare it, yet the reformations of late prove, that it was not allowable.

30. And though it were said, that those depositions were allowed and given in evidence by the Lord Coke, then Attorney General, in 36 Eliz. upon an office at Carlile, Francis Dacres, which was also confirmed by my Lord Coke: yet that moved us little, both because the case differs much between an inquest of office which admits a traverse, and this hearing which is final. And also because it is now contraadicted and put to the judgment of the Court, which must give answer judicially, whcih before passed in silence.