Easter Term 36 Eliz. Geilles versus Rigeway.

IN debt for 306. l 6. s. 8 d. by William Geillies, against Thomas Rigeway Esq late Sheriff of Devon; For that wheras John Chaunder alias Chaun∣deler, was in execution with the said Sheriff for the said summ, the said Sheriff afterwards, to wit, the tenth day of December, 34 Eliz. at London, in such a Parish and Ward suffered him to escape, the said Rigeway then being Sheriff of Devon, and having him then in execution, &c. To which the Defendant pleaded, how that he took him in Execution by the Proces at Stockram in the County of Devon, as the Plaintiff hath alledged, and there detained him in safe custody untill the 8th. day of December, 34 Eliz. at which day the said Chaundeler broke the Prison, and escaped out of it contra∣ry to the will of the said Defendant, and that the Defendant did freshly pur∣sue him, and in this fresh pursuit did re-take him the 11th. day of December, then next ensuing at Stockram aforesaid, and detained him in execution for the said 306 l. 6 s. 8 d. during the time of his Office, and delivered him ever to the new Sheriff, &c. To which the Plaintiff replyed by protestation, that he did not make fresh pursuit; And for plea saith, That after the going a∣way of the said Chaundeler, and before his re-taking by the said Defendant as aforesaid, the said Chaundeler for a whole day and night, to wit, at Lon∣don, in the Parish and Ward aforesaid, was out of the view of the said Defen∣dant, &c. Vpon which it was demurred in Law.

And it was moved by Cook Attorney-generall, that Iudgment ought to be given for the Plaintiff; for, in as much as it was alledged, that he was out of the view of the Sheriff for a day and a night together, there it shall be in∣tended to be a default in the Defendant in the making of his pursuit, and ther∣fore chargable to the Plaintiff, and yet he agreed, that if the Sheriff had made his pursuit freshly; although that at the turning of a Lane, end of a house, or the like, the Prisoner had been out of the view of the Sheriff for a small time, as untill the Sheriff commeth to this turning, end of the house, or the like, yet the Sheriff may re-take the Prisoner, and he shall be yet said to be in execution to the party against his will, yet when he is for so long a time out of his view, it shall be otherwise, for the default which the Law presumes to be in him; and therfore in this case the action lies. To which it was answered by Popham, Gawdy, and Clench, That if he makes fresh pur∣suit, so that it doth not appear fully that there was a default in the Sheriff in his pursuit, although he were so long out of his view, yet he shall be said to be in execution for the party against his will upon the retaking of him: As if be be pursued to a house where he is kept for a long time, and the Sheriff set a guard upon the house, and after this re-take him the next, or any other day without departing from thence, the Sheriff in such a case may re-take him up∣on his coming out of the house, and he shall be in execution to the party a∣gainst his own will.

And so in all like Cases; As if he pursues him in the night, so as he can∣not see him, and yet by the tract of the horse, or enquiry he makes diligent pursuit to re-take him, so that it cannot appear that there was any negli∣gence or default in him in making pursuit.

And it is not the form of the pleading to alledge, that he pursued him fresh∣ly, and had him alwaies in his view untill he re-took him, but only that he pursued him freshly and took him in this fresh pursuit, without saying any thing that he was in his view, and therfore his being out of the view of the Sheriff is not materiall in the case, but the fresh pursuit, and the taking of him in this pursuit.

Page  42 Then Coke moved, that the Bar was not good, because he doth not shew where he made the pursuit, so that he might agres to answer that which is alledged by the Plaintiff, to wit, his being at large at London, and ther∣fore the Bar not being good, Iudgment shall be given against the Defen∣dant for the insufficiency of his Bar: for a Repleader shall not be in case of Demurs, as it hath been adjudged here very lately, and also in the Common Bench.

To which it was answered by the said Iustices, That if the Bar be insuffi∣cient in matter, so that it may appear by it, that the Plaintiff hath sufficient cause of Action, which in matter is not sufficiently avoided by the Bar, Judg∣ment shall be given for the Plaintiff upon the Bar, if the Replication be suffi∣cient, and no Repleader; but if the Bar be sufficient for the matter and insuf∣ficient for the form only, as it is here, there before the Statute of Eliz. for pleading there shall be a Repleader, but now because no Demurrer was upon the Bar, but a Replication made to it, therfore by Popham no advan∣tage shall be taken of the Bar for matter of form, which is admitted by the party, and no advantage taken therof according to the Statute.

And they all agreed, that the Sheriff, albeit he did not make fresh pursuit upon the escape, may yet take, re-take the Prisoner who escaped from him out of Execution, for the Prisoner shall not take advantage to avoid the Exe∣cution; and therfore in respect of the Plaintiff, who yet may accept the Pri∣soner to be in execution, the Sheriff may re-take the Prisoner. But if the Plai. had recovered against the Sheriff before for the escape, then the She∣riff for his Indempnity cannot re-take him, but is put to his Action upon the Case against the Prisoner, for the Sheriff hath no colour in such a case of es∣cape to retake him, but in respect, and for the advantage of the Plaintiff, who had Iudgment against the Prisoner, and not in respect of the private wrong done to himself, of which he hath no Iudgment, and as it is now, the Repli∣cation not being good (by Popham) Iudgment ought to be given against the Plaintiff. But by assent it was ordered that the Defendant shall put in new Bail, and that upon it, he shall plead anew; But how shall it be if the She∣riff do notmake fresh Suit and re-take him? And afterwards he, at whose Suit he was in Execution recovered against the Sheriff; may the Prisoner have an Audita querela upon the matter?

Vpon an Assembly of all the Iustices at Serjeants-Inn in Fleetstreet, with the Barens of the Exchequer, it was cleerly agreed by them all (but two, who at the beginning made some doubt of it, but at the end assented also.)

If in the night, the house of any be broken, with an intent to steal any thing being in the house, although no person be in the house at this time, yet this is Burglary, for the Law is, that every one shall be in security in the night, as well for their Goods as their persons which be in the house.

And if a Church be broken in the night for the stealing of any thing in it, this is Burglary, though no person be in it at this time. And so hath the Law alwaies been put in execution, and in all the Books which speak of Burgla∣ry, it is not mentioned that any person ought to be in the house, but that it is Burglary, the Messuage being •eck•n in the night, to the intent to kill any person th••e, or to the intent to steal any thing out of it.

And the case that of late time it hath been put in the Inditements of Bur∣glary, that some person was then there, &c, hath been, because that in such cases of Burglary, Clergy was taken away, but now by the Statute of 18 Eliz. Clergy is taken away in every case of Burglary.

And the ancient Presidents are, Quod domum of such a one Nectanter Fe∣lonice & burglariter fregit, without making mention that any person was then in it, or making mention that it was Domus mansionalis of any: And it may be a Mansion House, albeit no person then inhabit in it. And agreed Page  43 that hereafter it shall be so put in execution by all the Iustices. See this more fully hereafter, Trin. 36 Eliz. Pl. 1. in this Book.

AT Tres Paschae this Term there were made for Serjeants at Law; viz. Lewkenor, Savage and Williams of the Middle-Temple, Heale only of the Inner-Temple, Kingsmill, Warburton, Branthwaite, and Flemming of Lincolns-Inn, and Daniel and Spurling of Grayes-Inn.

And all the Iustices were assembled in the Middle-Temple Hall, the Wed∣nesday past M•nsem Paschae, being the second day of May, where the two chief Iustices, and chief Baron sate upon the Vpper-Bench of the same Hall, in their Scarlet Robes with their Collers of S. S. and every one of the o∣ther Iustices and Barens in their Ancienty, one on the one side, and the o∣ther on the other side in their Scarlet Robes also, and then came the new Serjeants in their black Gowns before the Iustices there, the two eldest be∣ing put in the midst before the chief Iustice of England, and so every one of them, one on the one side, and the other on the other side, according to their Ancienty, and every one of the said Serjeants having one of his Servants behind him at his back, with his Masters Scarlet Hood and Coife upon his arms: And therupon the said chief Iustice made his Speech in this manner.

IF men will enter into a due consideration upon what grounds the Laws of this Realm have their Original Foundation, and what good effects are wrought through the due execution of the same they might say, and that just∣ly, that the profession therof is both an honest, and honourable Profession.

The Laws are derived partly from the law of God and partly from the Law of Nature. From the Law of God, in that it ordaineth means how the people may be truly instructed in the knowledge and fear of God: How they should demean themselves towards their Soveraign and Prince: How they ought to live one with the other, and how to be defended from oppressions and in∣juries. From the Law of Nature, in that it provideth how each man may de∣fend himself, that he may live by his own labours, or otherwise according to his profession or calling; That he may secure his Posterity of that which he hath gathered together by his industry, and that man with man may live to∣gether in such secure and comfortable Society as appertaineth. And what be the effects which grow by the due execution of the Laws? They are these.

By it, God is known, the Soveraign Prince obeyed, the people are kept to live in peace, and that is yeilded to each which is his due: And can there be any better things then these upon the face of the Earth? No, there cannot. The Law therfore being taken from so good a ground, and working such no∣table and honourable effects, who can justly say otherwise, but that the pro∣fession of such a Law in an honourable profession? Are not the Judges of the Law professors of the Law? See then what God himself in his word hath said of Judges in Psal. 82. speaking of Judgment and Justices he saith thus; I have said yee are Gods, and can there be any higher name then this in Heaven or Earth? And why are they so learned? but for that, they in their Offices do re∣semble that which is the Office of God, as to discern so far forth as mans ca∣pacity can reach unto between right and wrong, truth and falshood, the just and the unjust, which is a most high, weighty and honourable charge, and therfore 2 Chro: 196. cha. Jehosophat said to the Judges, Take heed what you do, for you do not execute the Judgments of men, but of the Lord, and He will be with you in Judgment. By which it is evident, that they are either grosly ignorant, or otherwi•e very malignant and con•emptuous persons that may not be in∣duced to be reformed, that do in any wise hold the profession to be either base or contemptible.

Page  44 And this I may truly say to the encouragement and comfort of such as be∣ing honest do profess the Law: That in the most parts of England there are more Gentlemens houses, and those of continuance raised and advanced by that profession alone, then by all other the professions that can be spoken of, and approved,.

Let any man of Experience in the State, of the generall part of the Realm enter into a due consideration of it, and I am well assured he shall find it so; wherby it may plainly appear, that Gods blessings for worldly benefits have greatly abounded towards such as have walked evenly and justly in that cal∣ling: yet happily there may be some (I mean such as slip in by extraordina∣ry means) that somtime do give scandall to the Profession; as where such are called to the Degrees of Learning, as are either ignorant, or infamous persons, wherby they either cannot advise as they should, or by giving them∣selves over to slights and to shifts, they do not advise as they ought.

A matter abhorred of all good and honest men: But the same being duly weighed, tendeth to the touch of the person, and not of the Profession. Nevertheless to avoid this Scandall, I would advise;

1. Such as have Government in these houses of Court, should be very care∣full and respective in their Calls, not only to the bench as Readers, but of those also whom they call to the Bar, that they may be such as may appear to be both learned, and honest, and such as may not justly be impeached of Ignorance, or Ignominy; for such are not only to advise between parties, but many of them are drawn to Credit and Government also in their Coun∣tries, and therfore behoofull to be free from such Imputations.

And sithence without the knowledge of the Law in some measure, such as govern in their Countries, may often fall to commit such Errors as were to be wished might be otherwise.

It were convenient that Gentlemen, yea, those of best worth would bring up their very heirs in the knowledge of the Laws, as that they might in after ages, when as they shall be called to Government, be so able to govern under her Majesty as might best stand with their Reputations, and the good of their Countries.

And now your selves that are here present, and have been called to this State and Degree of Serjeants at Law (a State and Degree I may well call it, for that her Majesty doth so term it) Since your gravities and your good conver∣sations in your callings hither-to, and the good opinion conceived of your Learnings, Experiences, and Discretions hath moved her Majesty to call you to this Dignity.

I am now to advise you so to demean and govern your selves in your Pro∣fession as those good things thus conceived of you may not henceforth any waies be blemished, but rather encrease, to your further Reputations and Credits. In which you are to have a speciall regard that you be thankfull, first, to God, who hath so guided the course of your lives hither-to, as it hath made you to have been thought to have merited this Advancement. Then to her Majesty, who upon good report made, hath conceived so well of you as to call you to this Degree, wherin it behoveth you so to demean your selves, as in all her Highness Service, both in your Countries and otherwise, as you shall be called therunto, as you may be found to deal therin effectu∣ally, diligently, and justly.

And lastly, to the Country and Common wealth who hath carried so good a report of you, as therby you have been the rather brought to this place: And the most thankfulness you can shew to your Country, is, to Councell your Clients according to your skill honestly, and truly, wherby they may not be encouraged to spend their time and their substance in vain, frivolous, and unjust Suits; to be faithfull and secret to your Clients, not disclosing their Councels to their prejudice, that you expedite your Clients Cause Page  45 so far forth with conveniency, and your Clients safety, that both in your pra∣ctice and otherwise, your speech and behaviour towards all men be modest and discreet, yea, such as appertaineth to men of your Gravities and Callings, that without respect of persons, yea, be bold to maintain your Clients honest Cause, so far forth as may stand with knowledge and discretion: And that in all things you respect more your honesties, then your profits.

And touching these points, you have a continuall memory, and that al∣waies about you, in your very Garments: And therfore by the Coif, in respect it is white many things are signified, as Gravity, Wisdom, and Experience, for that these Virtues are proper to the gray haires, and white headed men.

There is also signified therby, that you should be both honest and of an un∣spotted life; And in that it is fashioned like a Helmet, it signifieth, that you should be both bold to utter your knowledge in the Law, in the honest and just cause of your Client, without respect of persons whomsoever it concern∣eth. And by the party colour'd Garments, being both of deep colours, and such as the Judges themselves in ancient time used (for so we receive it by tra∣dition is signified soundness and depth of judgment and ability to discerne of Causes, what colour soever be cast over it, and under, or with what vail or shadow soever it be disguised. For the wholness and closness of your Gar∣ments, they do signifie integrity to be used in your advices, and secrecy in your councels. And in that the Garments being single and unlined, it beto∣keneth that you should be sincere and plain in your advises, and not double, carrying your opinion to your self one way, and you advise it your Client clean another way.

The two Tongues do signifie, that as you should have one Tongue for the Rich for your Fee, as a reward for your long studies and labours, so should you also have another Tongue as ready without reward to defend the Poor and Oppressed; And therin to shew your seves thankfull to God for all that which he hath bestowed upon you.

And for the Rings you give, as Gold is amongst all Mettals the purest, so should you be of all others of your Profession the perfectest both in know∣ledge and in the other Virtues before remembred: And in that it is a Ring, and round without end, it betokeneth that you have made a perpetuall Vow to this your Profession and Calling, and are as it were wedded unto it: And therfore I heartily wish you may alwaies walk therin according as appertain∣eth to your Calling.

And this done, the ancienst Serjeant beginneth to recite his pleading, and so each after other in order.

And that done, the ancientest kneeleth down before the chief Justice of England, and so the rest before the Justices and Barons as they are in anci∣enty, and had severally by the said chief Justice their Coifs put upon their heads, and then their red Hoods upon their shoulders, and then the Serje∣ants return to their Chambers, and put on their party colourd Garments, and so walk on to Westminster the one after the other, as they be in ancienty, bare-headed, with all their Coifs on, and so are in their turn presented the one after the other, by two of the ancientest Serjeants: And after their plea∣dings recited, they give their Rings in the Court by some friends, and so are therupon set in their place at the Bar according to their ancienty.

And all this done, they return to their Chambers, and there put on their black Gowns, and red Hoods, and come into the Hall each standing at his Table according to his ancienty bare-headed, with his Coif on, and after setteth himself upon the Bench, having a whole mess of meat, with two cour∣ses of many Dishes served unto him; And in the afternoon they put on their Purple Gowns, and then go in order to Pauls, where it hath been accustom∣ed that they heard Service, and had a Sermon.