The resolutions of the judges upon the several statutes of bankrupts as also, the like resolutions upon 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by T.B., Esq.

Marmaduke Langdale's Case.

In the Case of Marmaduke Langdale of Leventhorp, in the County of York, by Joan his Wife, being sued for maintenance before the Bishop of Canterbury, and others High-Commissioners: It was Resolved, per totam Curiam, praeter Walmesly, that a Prohibition before granted, was well maintainable; because it was not any Enormity nor Offence within the Statute, but a neglect of his du∣ty, and a Breach of his Vow of maintenance: And the Rule of the Court was, That the Plaintiff shall count against the High-Commissioners, and upon Demurrer joyned the Case to be argued and adjudged; and the Party grieved, to have a Writ of Errour, si sibi viderit expedire, &c. Upon Complaint made to the King and Councel, by the Lord President of Wales, and the Lord President of York, against the Judges of the Realm; and the King's Pleasure signified to them: Upon Conside∣ration

had of the parts of the Complaint, they Resolved upon these Answers: And because of the Lord President of York first opened the Cause of his Grief more amply, they first answered those Objections, made on the behalf of that Councel: And first, as to the Institution of that Court.

1. After the Suppression of all Religious Houses, Anno 27. H. 8. in October 28. H. 8. there was an Insurre∣ction of the Lord Hussey, and 20000 Men in Lincolnshire, about Religion, which was appeased by the Duke of Suffolk.

This was no sooner over, but 40000 Men under Sir Robert Aske, made a Commotion in Yorkshire. Soon af∣ter was a great Rebellion in Lancashire, Westmerland; Cumberland, and Northumberland, which the Earl of Der∣by quieted. Then Musgrave, Tilby, and others, assaulted Carlisle Castle, and were overthrown by the Duke of Nor∣folk: Soon after, Sir Francis Pigot Rebelled at Setring∣ton in Yorkshire. Soon after, the Lord Darcy, &c. began a Commotion about Hull, appeased by the Duke of Nor∣folk. And all these Rebellions were between the 28. of and 30. of H. 8. in which time, many of the Rebels were Executed. And the King having effected in the 31 year of his Reign, the Suppression of the greater Houses of Religion, he establisht a Councel there for the quiet of the Counties of Yorkshire, Northumberland, Westmerland, Cumberland, Durham, the Counties of the City of York, Kingston upon Hull, and Newcastle upon Ty••e, for preven∣tions of Ryots, &c. And in this time of Necessity, the King Armed the President and Councel with two Autho∣rities in one Commission. The one, A Commission of Oyer and Terminer, de quibuscun{que} Congregationibus & conventiculis illicitis coadjutoribus, Lolardiis, &c. per quae pax & tranquilitas subditorum nostrorum Comitatibus, &c. praedict. gravat. &c. secundum legem & co••suetudinem regni nostri Angliae, &c.

The other Authority was, Nec non quascun{que} actiones∣reales seu de libero tenemento, & personales, causasque de, bitorum & demandorum quorumcun{que} in Com. &c. praed. quando ambae partes vel altera pars sic gravata paupertate fuerit quod commode Jus suum secundum legem Regni nostri aliter prosequi non possit, &c. And this was the Authori∣ty that the President and Councel had at first, without any private Instructions, as appears by the Commission under the Great Seal, 31 H. 8. 6 pars Roberto Landa∣vensi Episcopo Presidenti Consilii & aliis: out of which these things were observed.

1. That the intention of the Commission was, Quod pax subditorum & tranquilitas preserventur.

2. That they hear and determine Riots, Routs, &c. ac∣cording to Law, or their Discretions; which without question was no otherwise intended, but that they should proceed according to Law; for that is summa discretio, and not according to private Conceits for talis discretio discretionem confundit: so the other Clause concerning reall and personal Actions, in all the Counties and Pla∣ces aforesaid, was onely ad faciendum populum, for it was utterly void in Law.

1. Because no such general Authority granted, may be made by the Commission of the King, to hear and de∣termine all reall Actions within such a County accord∣ing to Law, as he may be Charter in a particular Coun∣ty or place: As it was Resolved in Scrogges Case, An. 2 Eliz. so. 175. in Dyer: Vid. Dyer 236. But the King by Letters-Patents may grant to a Corporation in such a Town, Tenere placita realia, personalia & mixta. And none can by this be prejudiced; for the proceeding ought to be according to Law; and if they erre, a Writ of Errour lies. See Magna Charta, cap. 12. and Westm. 2. cap. 30. which Acts give Authority to Justices of As∣size in their proper Counties; whereby it appears, that without an Act of Parliament, the King by Letters Pa∣tents cannot authorize Justices De Assize capiend. to take

them in another County. As a Justice of one Bench, or other, ought to be made by Commission, not by Writ, yet he may be discharged by Writ, 5 Ed. 4. 32. But Ju∣stices in Eyre are by Writ, Bracton, lib. 3. cap. 11. & Brit∣ton, fo. 1. Also, Westm. 2. cap. 30. and of York, cap. 4. & sic de ceteris.

Also it was observed, that at first the Commission ex∣tended onely when one or both Parties were so poor, as they were not able to prosecute at Law. Also they had no power to grant Injunctions: and lastly, their Com∣mission was a Patent under the Great Seal, and enrolled in Chancery. And thus much was said concerning the first Institution of the Court:

2. That our Proceedings in granting Prohibitions, is for matter justifiable by Law.

As to this, whereas at first their Authority was Patent, it is now private; for the Letters-Patent refer to pri∣vate Instructions, which are no where of Record, Et de non apparentibus & non existentibus eadam est ratio: be∣sides, the danger to the Subject is great; for if they lose their Instructions (which hath and may happen) all is Coram non Judice. The second Reason is drawn from the contumacy of the Party, supposed to be grieved by the Prohibition, and against whom it is granted: for if the Authority of the Councel be never so good, yet being a late Jurisdiction, the Party must of necessity plead it, so as it may appear judicially; for as we are Judges of Record, so must we be informed of Record: And no party prohibited, ever yet moved in Court to have a con∣sultation, by which might be set forth the Jurisdiction of that Court and Councel; so as the granting of Pro∣hibitions hath been just. The third Reason is drawn from the great Injury offered to the Defendants, for it is a true Rule, Misera servitus ubi jus est vagum aut in∣certum. The Defendants by Law may in all Courts plead to the Jurisdiction of the Court: but how can they do so, when no man can possibly know what Jurisdiction they

have: And the keeping of them in such Secrecy be∣wrayeth that the Councel are afraid, that they would not be justified if they were known.

3. That the manner of our Proceedings was respect∣ful: for a Jury of Officers and Attorneys of our Court being according to an antient Custome, time out of mind used, sworn to present, among other things, all Defaults of Officers and Ministers, in not executing the Process of this Cou••t, and all Impediments of the due Proceedings thereof: And finding upon their Oaths, divers unjust Impediments of the said Proceedings by the said Councel in particular, thereupon a motion being made in open Court in Michaelmas Term last, by the King's Serjeant Philips, of many Grievances done there∣by, prayed the Court, according to Law and Justice, to grant several Prohibitions, in all those several Causes, which we could not deny. Yet first we conferred with Sir Cuthbert Pepper, Attorney of the Wards, and one of that Councel, to let him understand the part••cular G••ievan∣ces; who, upon Motion, came to us to Se••geants Inne, with whom we conferred, who would not take upon him to justifie the same in no sort, but said he would acquaint the President and Councel therewith, and return their Answer. Which for that it was neglected, upon further Motion in Court, we granted Prohibition, as in Justice we ought.

4. Now to answer all Objections: And first, where it was objected, more Prohibitions had been granted of late, than in many years before: To this a Sixfold An∣swer was made.

1. That they had exceedingly multiplyed the number of Causes; they in five Counties, and three Towns, ha∣ving at one sitting 450 Causes at Hearing: whereas the Chancery that extends into all England and Wales, had in Easter Term, but 95. and in Trinity Term but 72. to be heard. So that it is no wonder, it in such a Multiplica∣tion of Causes, the number of Prohibitions be increased.

2. Besides the Multiplication they have innovated and taken upon them, to deal in Causes which we know ne∣ver any President could, and we think, never any Presi∣dent and Councel did usurp: As first, Suits upon Penal Laws; As between H••rison and Thurston, upon the 39 of Eliz. of Tillage. 2. In H••rtley's Case, after Indict∣ment of Forcible Entry, and Restitution according to the Statute upon English Bill, dispossessed by the President. 3. After a Recovery in Ejectione Firmae, and Habere facias possessionem, out of our Court, they upon English Bill dis∣possessed the Plaintiff; this was Hart's Case. So in o∣ther Cases; as between Jackso•• and Philips, Stanton and Child, and Binns and Coll••t. 4. They admit Eng∣lish Bills, in nature of Writs of Errour & Formedons, and other reall Actions. 5. They wi••l ••dmit no Plea of Out∣lary, in disability of the Plaintiff. 6. They usually granted Injunctions to stay the Common-Law, which is utterly against Law; and som times to stay Suits in Chancery, and in the Exch••quer Chamb••r: for which, in respect as well of the Multiplications of Suits, as Innova∣tions of others, it may very well be, that more Prohibiti∣ons, and Habeas Corpus have been granted of late, than in time past. And yet there hath been more granted, and more antient than is supposed: For which, see Mich. 7 Eliz. Rot. 31. and Mich. 7. and 8 Eliz. in libro de Habeas Corpus. Also, Trin. 20 Eliz. ibid.

3. The Judges never grant either Prohibition, or Ha∣beas Corpus, but upon Motion or Complaint by the Par∣ty grieved; and therefore as the Subject hath more cause to complain, there must needs be more Prohibitions, and Habeas Corpus, than heretofore.

4. The Proceedings there are by absolute Power, and their Decrees uncontrollable and finall, more than in a Judgment in a Writ of Right, which makes them pre∣sume too much upon their Authority.

5. These Suits grow more prejudicial to the King than ever, because thereby the King loseth his Fines, &c.

6. Remedy for the time past; if the Common-Bench erre, Writ of Errour lies in Banco Regis; if the Kings-Bench erre, a Writ of Errour lyes in the Upper-House of Par∣liament.

7. For the time to come: 1. That the Instructions be inrolled in Chancery, that the Subject may see and know their Jurisdiction. 2. That the Presidents and Councels, have some Councel Learned in the Court, to inform us judicially of their true Jurisdiction, and we will give them a day to shew cause, that Justice may be done on both sides; and if we erre, the Law hath provided a Remedy by Writ of Errour: And we are sworn to do Justice to all, according to the Laws.

Upon this Answer of the Judges, the Lords of the Coun∣cel, upon Conference among themselves, gave (by the Earl of Salisbury, then Lord Treasurer) this Resoluti∣on.

1. That the Instructions should be Recorded, as far as they concerned Criminal Causes, or Causes between Party and Party: But as to State-Matters, not to be pub∣lished.

2. That both Councels should be within the Survey of Westminster Hall, viz. the Courts of Westminster.

3. The Motion was well allowed, that the Presidents and Councels should have Councel learned in every Court, that day might be given, &c.

And concerning the remotenesse of the place, the Counties of Cornwall and Devon, are more remote then York: And this was the end of that Dayes Work.