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.

Hill. 6 Jacob. Regis.

Prohibitions.

Upon Ashwednesday in Feb. 1606. A great Complaint was made by the President of York, to the King, That the

Judges of the Common-Law, had, in Contempt of the Kings Command last Term, granted 50 or 60 Prohibi∣tions out of the Common-Pl••as, to the President and Coun∣cel of York, after the 6th of February, and named 3 in par∣ticular. 1. Between Bell and Thawptes. 2. Another between Snell and Hu••t. 3. And another, in an Infor∣mation of a Riotous Rescue by English Bill, by the Attor∣ney-General, against Christopher Dickenson, one of the She∣riffs of York, and others, in rescuing one William Watson, out of the Custody of the Deputy of one of the Pursey∣vants of the said Councel, who had Arrested the said Wat∣son, by force of a Commission of Rebellion, by the said President and Councel awarded: Which Prohibition, upon the Information, was (as was said) denyed, upon a Motion in the Kings-Bench the last Term; but granted by Us. And the King sent for me, to answer the Complaint; and I onely, all the rest of the Justices being absent, waited upon the King; who, in the presence of Egerton, Lord Chancellor, and others of the Privy-Councel, re∣hearsed to me the Complaint aforesaid. And I percei∣ved well, that the King had thereupon conceived great displeasure against the Judges of the Common-Pleas, but chiefly against Me: To which (I having the Copy of the Complaint sent me by the Lord Treasurer) an∣swered in this manner: That I had made search in the Office of Prothonotaries of the Common-Pleas; and as to the Cases between Bell and Thawpts, and Snell and Huet, no such could be found; but I would not take advantage of a Misprisal: And the truth was, the 6th of February, the Court of Common-Pleas had granted a Prohibition to the President and Councel of York, between Lock Plain∣tiff, and Bell and others Defendants; and that was a Re∣plevin in English was granted by the said President and Councel, which I affirmed was utterly against Law: for at Common-Law no Replevin ought to be made, but by Original Writ directed to the Sheriff: and the Statute

of Marlbridge, cap. 21. and West. 1. cap. 17. authorize the Sheriff to make a Replevin. So 29 Ed. 3. 21. 8 Eliz. Dyer 245. And the King by his Instructions neither had made the President and Councel Sheriffs, nor could grant them Power to make a Replevin against Law; which the Lord Chancellor affirmed for very good Law; and it may well be, we have granted others in the like Case. Another Prohibition, I confess, we have granted between Sir Bethel Knight, now Sheriff of the County of York, as Executor to one Stephenson, who made him and another his Executors, and preferred an English Bill against Chambers, and others, in nature of an Action of the Case, upon a Trover and Conversion of Goods and Chattels in the Testators Life, to the value of 1000 l. And because the other Executor would not joyn with him, he had no remedy at Common-Law; but was forced to pray reme∣dy there in Equity. And I say, the President and Coun∣cel have not any Authority to proceed in that Case, for divers causes.

1. Because there is an express Limitation in their Commission, that they shall not hold Plea between Par∣ty and Party, &c. unless both or one of the Parties, tanta paupertate sunt gravati, that they cannot sue at Common-Law; and in that Case the Plaintiff was a Knight, She∣riff, and man of great quality.

2. Because by that Suit the King was deceived of his Fine, which was 200 l. because the Damages amounted to 4000 l. And that was one of the Causes, that the She∣riff began his Suit there, and not at Common-Law. Ano∣ther Cause was, that their Decrees which they take upon them, are final and uncontroulable, either by Errour, or any other Remedy; which is not so in the Kings Courts, where there are five Judges: for they can deny Justice to none who hath Right; nor give any Judgment, but what is controulable by Errou••, &c. And if we shall not grant Prohibitions, in Cases where they hold Plea

without Authority, then the Subjects shall be wrong∣fully oppressed without Law, and we denyed to do them Justice. And their Ignorance in the Law appeared, by allowing that Suit, viz. That the one Executor had no Remedy at Common Law, because the other would not joyn in Suit with him; whereas every one Learn••d in the Law knows, that Summons and Severance lyeth in any Suit brought as Executors. And this was also affirm∣ed by the Lord Chancellor.

Another Prohibition, I confess, we granted between the L. Wharton, who by English Bill, before the Councel, sued Bank S. Buttermere, and others, for fishing in his se∣veral Fishings in Darwent, in the County of C. in nature of an Action of Trespass at Common-Law, to his Da∣mages of 200 l. and for the Causes before recited; and because the same was meerly determinable at Common-Law, we granted a Prohibition: And that also was allow∣ed by the Lord Chancellor. Then the King asked me the Case of Information upon the Riotous Rescous: To which, I answered, That one exhibited a Bill there, in the nature of an Action of Debt, upon a Mutuatus against Watson, who upon his Oath affirmed, that he had sa∣tisfied the Plaintiff, and owed him nothing: yet because he did not deny the Debt, the Councel Decreed the same against him; And upon that Decree, the Pursuyvant was sent to Arrest the said Watson, who Arrested him; upon which the Rescous was made: And because the Action was in the nature of an Action of D••b••, upon a Mutuatus, where the Defendant at Common Law might have waged his Law, the Prohibition was granted; and that was also affirmed by the Lord Chancellor. Also, I affirmed it was Rescous, because the principal cause be∣longed not to them; but it might be a Riot, yet not punishable by them, but by course of Law, by a Commis∣sion of Oyer and Terminer.

Also, I confess, that we have granted divers Prohibitions to stay Suits there by English Bill, upon penal Statutes, for the manner of prosecution, as well for the Action, Process, &c. as for the Count, is to be pursued, and can∣not be altered: and therefore, without question, the Councel, in such Cases, cannot hold Plea; which was affirmed also by the Lord Chancellor. And I said, no Court of Equity can be Erected at this day without Act of Parl, as was Resolved in Q. Eliz. time in Parots Case; and lately in the Case of the President and Councel of Wales.

And the King was well satisfied with these Reasons, who gave me his Royal Hand, and I departed from thence in his favour.