Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

Hillary Term, 36 Eliz. in the Kings Bench.

IN Michaelmas Term, 33, & 34 Eliz. Rot. 181. William and Joane his wife, Administratrir of Andrew Stock, brought an Action upon the Case upon an Assumpsit, made to the Intestate for the payment of 5 l. to William Stock, who imparled untill Tuesday next after, Octa. Hillary next, which was the 24th. day of January, and then the Defend••nt demanded Oyer of the Letters of Administration which were entred, in haec verba.

Wherby it appeareth that the Letters of Administration were committed to the said Joane by Thomas Taylor Batchelor of Law, Commissary to the Bi∣shop of London, &c. wherby the Defendant pleaded, that after the last con∣tinuance, ••he said Letters Patents of Administ••ation, sealed with the Seal of the Vicar Generall of the said Bishop, which he useth in this behalf, and brought here into Court, bearing date the 27th. day of January 1591. which was three daies after the continuance, committed the Administration to the said Defendant. And pleaded further the Act of 37 H. 8. which sayes, that it shall be lawfull hereafter for any person, being a Doctor of the Law, to be Chancellor, Commissary, or to exercise Ecclesiasticall Iurisdiction, albeit he were a meer Lay person, so that such a person be a Doctor as aforesaid, and avers, that at the time of the committing of the Administration to the said Joane, the said Thomas Taylor was a meer Lay person, and not Doctor Legis civilis nec minister allocatus, according to the Laws of the Church of England, wherby he had no lawfull power to commit the Administration.

Vpon which it was demurred generally, and by all the Court the Plain∣tiff had Iudgment to recover; for we are to consider what our Law was in this case before this Statute of 37 H. 8. And albeit a Doctor then affirmed, that the Canon Law was, that there was a meer nullity in such Administra∣tion, so although the party that did it, not being a Clark nor Doctor, accord∣ing to the Stat. of 37 H. 8. yet all the Iustices agreed, that the Administra∣tion so committed will be adjudged in our Law to be of force and effect, being shewn under the Seal of the Officer and committed by him, who is reputed the Officer, who ought to do it, and is invested in the Office untill it be a∣voided by sentence, and yet such an avoidance shall not make a mans act to be made void, no more then if a meer Lay-man be presented to a benefice, albeit this be a meer nullity in our Law, and void, yet we adjudge the Church full, according to the publike admission, constitution and induction, and not according to the capacity of the person, which is a thing secret, untill such a one be deprived for it by sentence in the spirituall Court, and yet the Church shall be in our Law void but from the time of deprivation, of which notice ought to be given to the Patron.

So here, he remains as to our Law an Officer untill his authority be defea∣ted by sentence of the spirituall Court, otherwise great mischief will happen; for an infinite number of Administrations may be drawn in question by A∣verment, that he, who granted them was a meer lay person, and so make such Garboils in the Common-wealth, which is not to be suffered for the in∣conveniency which will happen by it; and therfore our Law which is foun∣ded upon reason shall judge of it according to the open appearance of the Of∣ficer, to wit, that he hath a grant made to him, and not according to the private capacity of the person, and this is not altered by the said Statuts which is made in affirmation of it, and makes the authority of a Doctor of Law absolute, not to be defeated by the Civill or Canon Law, which is not in the other case: But yet it doth not make this case of worse condition then it was at Common Law. And by all the pleading of the Administration com∣mitted to the Defendant, is not good, because it appeareth by the date of it, that it was made after the day of the last continuance, and therfore could not have been pleaded untill a new continuance after: And by the Doctor the last Administration does not avoid the first, but in case where there is an espe∣cial revecation of the first: But they did not speak of the doublenesse because the Demurrer was generall and not speciall, and also because the other mat∣ters were so cleer.

2. IN Trespasse for carrying away certain Loads of Hay, the case hapned to be this; The Plaintiff pretending Title to certain Hay which the de∣fend▪ had standing in certain Land, to be more sure to have the Action passe for * 1.1 him, took other Hay of his own (to wit, the Plaintiff) and mixed it with the Defendants Hay, after which the Defendant took and carried away both the one and the other that was intermired, upon which the Action was bought, and by all the Court cleerly the Defendant shall not be guilty for any part of the Hay, for by the intermirture (which was his own act) the Defendant shall not be prejudiced as the case is, in taking the Hay. And now the Plaintiff cannot say which part of the Hay is his, because the one cannot be known from the other, and therfore the whole shall go to him who hath the property in it with which it is intermired, as if a man take my Garment and Em∣broider it with Silk, or Gold, or the like, I may take back my Garment, But if I take the Silk from you, and with this, face or embroider my Gar∣ment, you shall not take my Garment for your Silk which is in it, but are put to she Action for taking of the Silk from you.

So here, if the Plaintiff had taken the Defendants Hay and carried it to his house, or otherwise, and there intermired it with the Plaintiffs Hay, there the Desendant cannot take back his Hay, but is put to his Action a∣gainst the Plaintiff for taking his Hay. The difference appeareth, and at the same day at Serjeants Inne in Fleetstreet, the difference was agreed by Anderson. Pe••iam, and other Iustices there, and this case was put by Ander∣son: It a Goldsmith be melting of Gold in a Pot, and as he is melting it, I will cast Gold of mine into the Pot, which is melted together with the other Gold, I have no remedy for my Gold, but have lost it.

Notes

• * 1.1

  Property.