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 Jac. Regis. In the Common-Pleas,

Neal and Rowses Case.

At a Nisi Prius in London, before my Self this Term, the Case was this: Edward Neal informed upon the Stat. 21 H 8. c 5. Which Plea began Mich. 6 Jac. Rot. 1031. against James Rowse, Commissary and Official within the Archdeaconry of Huntington, in the Diocess of Lincoln; and having Probate of Wills, &c. in the same Archdea∣conry: And that Nicholas N••al, in the 3d year of the Reign of the said King James, made his Testament in Writ••ng, and made the Plaintiff his Executo, and dyed possessed of Goods and Chattels, to the value of 150 l. The D••f••ndant, then Commissary and Official, &c. the 23 Feb. 1605. at the Parish of St. Mary Bow, Testament. praed. proba it &c. ac per manuscujusdam Thomae N••cke, tunc Minist••i ipsius Jacobi Rowse &c. 14 s. 10 d. pro prob••tione &c. Testament. p••aed. de eodem Edwardo, &c. qui tam &c. Colore Officii sui praed. ad tunc ••t ibid. extor∣tive recepit et habuit contra formam Statuti: With this, that the said Edward qui tam, &c. will adde, That the Writing of the said Testament, according to the Rate of a peny for every ten Lines, every Line containing in length ten Inches, non attingebat, to the Sum of 12 s. 4 d. according to the form of the Statute aforesaid, &c. The Defendant pleaded nihil debet; and at the Nisi Prius, the Evidence of two Witnesses was, That the Plaintiff cau∣sed the said Testament, which was in Paper, to be en∣grossed in Parchment; and the Plaintiff offered both to the said Rowse to be proved; who answer'd it should, if his Fees shall be paid him: And the Plaintiff asking

him, What were his Fees? and be wrote them in a Paper, which amounted to 14 s. and 10 d. Whereupon the Plaintiff laid upon the Table 20 s. and desired him to take what was due to him, (all this being in the Offi∣cials house) but he would take nothing there, but ap∣pointed the Plaintiff to come into Court, where he would receive his Fees: And accordingly the Plaintiff coming into Court, and praying to have the said Will proved; the Defendant required the said Nicke to take of him for the Probation, Insinuation, Registring, and Sealing, 14 s. 10 d. and thereupon put the Seal of the Office to the same Parchment, that the Plaintiff brought him, &c.

And it was objected, That this Case was out of the Statute; for thereby, as to this purpose, it is provided, viz. And where the Goods of the Testator, &c. amount a∣bove the value of 40 l. that then the Bishop, nor Ordinary, nor any of his or their Registers, Scribes, Praysors, &c. or any other their Ministers, for the Probation, Insinuation, and Ap∣probation of any Testament, &c. for the Registring, Sealing, Writing, &c. any Inventories, Acquittances, Fines, or any thing concerning the same Probate of Testaments, &c. shall take, &c. but onely four shillings, and not above. Wh••r••of, &c.

And the Defendants Councel objected, That the De∣fendant did not take the 14 s. 10 d. &c. For no Pro∣bate was written upon the Testament it self, nor any Seal put to it, but the Testament was ingress••d in Parchmeat, and the Probate and Seal put to the Transcript, and not the Testament, and so out of the Statute: The Statute extends onely when the Probate and Seal is put to the Testament it self, &c. But I conceived, that the said ta∣king the 14 s. 10 d. in the Case at Bar, was clearly a∣gainst the Statute; for the Act is in the Negative: And if the Executor requires the Testament to be ingrossed in Parchment, he ought to agree with him, that he requires

to do it, as he may. But the Ordinary, Official, &c. ought not to exact any Fee for the same, as due to him, for divers causes.

1. Because the words of the Act are expressed for the Probation, &c. and for the Registring, Scaling, Writing, &c. Which word (Writing) extends expresly to this Case.

2. The words are, (or any thing concerning the same Probate) and when the Seal and Probate is put to the Transcript, the same (without question) concerns the Pro∣bate.

3. Such a Construction would make the Act idle and vain; for if the Ordinary, Official, &c. might take as much as he pleaseth, for the Ingrossing done by his Mi∣nisters, as a due to him, all the purview of the Statute, which is penned so precisely concerning persons, should be all in vain, by that evasion of Transcribing it, as well against the express Letter of the Act, as the intention of it. And the Act ought to be expounded, to suppress Ex∣tortion, which is a great affliction and impoverishing of the Subjects.

4. As this Case is, he annexes the Probate and Seal to the Transcript ingrossed, which the Plaintiff brought him; so as the Case at Bar was with question: And afterwards the Jury found for the Plaintiff. And of such Opinion was Walmesly, Warberton, Daniel, and Foster, Ju∣stices, the next Term in all things: But upon Excepti∣on, in Arrest of Judgment, for not pursuing of the Act, in the Information, Judgment is not yet given, &c.