[108 b] avow, as upon land liable to his distress, (as here he hath done,) and so handle it as a rent charge, then the stat. is indifferent to both, that the other may defend according to the same rules, by the same reason; for now the privity of the person tenant is removed on both sides, and the charge of the land is only in question. [109] Legem feras quam ipse tuleris, yet it is true, there is no literal provision for this in the law of 21 H. 8. but the mere consequence of reason changing, changes the law. Now where the avowing was only upon the land, as in the case of customary profits, as a fine for alienation or of a rent charge, there the plaintiff at the common law in such cases might plead any discharge, though he were a mere stranger, and had nothing in the land. See 14 H. 4. 8. b. and 14 H. 8. 6. Halfpenies cases judged. (1) (1) If an exception be of an inseparable incident and a thing which cannot be granted by itself and from another, as if land be granted, excepting the common appendant thereunto belonging, the exception is void. Shep. Touch. 79, Chancery Mo. 823. THE KING & al. vs. ARUNDEL & al. When title deeds are suspected to be suppressed or withholden by the defendants or those under whom they claim, chancery will decree that the plaintiff shall hold the land until the deeds shall be produced. General acts of parliament are enrolled in chancery; which enrolment is the original record of the act; but private acts are not enrolled, and of such, the first bill filed and sealed, and remaining with the clerk, is the original record. The journals of parliament are not records, and cannot weaken or control a statute, which is a record and to be tried only by itself. Statutes take effect from the beginning of the parliament or session, unless it be otherwise ordained in the act itself. Depositions taken upon an inquiry in the Court of the Council of York, not allowed in chancery. IN chancery there was a suit commenced by me, as attorney general, in the behalf of the king's majesty, and the Lord Hunsdon as the king's farmer for the manor of West Harsley and Asalby in the county of York, against the countess dowager of Arundel, and the Lord William Howard and his lady; which cause coming to hearing after I was chief justice of the Common Pleas, my lord chancellor called to his assistance in the hearing of it [109 a] the lord chief justice Coke and myself. This cause hung long, and had many hearings and briefs delivered, and after long consideration, was, this term, with uniform consent of the lord chancellor, us the judges, and master of the rolls, decreed for the king. Wherefore the decree is, with the reasons thereof, advisedly and exactly penned and entered, as of this Trinity term 14 Jac. lieveth mere where the deeds are not extant. Of this decree therefore at large I will say nothing but this, that the reason of the suit in chancery was not for want of good title at law, (for it said and affirmed the king's title to be merely by law, by the attainder of Fran- Chancery recis Dacres, whose land the bill laid the land to be, of an titles in law estate in tail,) but the cause of suit was made, that the deeds whereby the estate was to come to Francis Dacres were not extant, but very vehemently suspicious to have been suppressed and withholden by some under whom the defendants claimed, and therefore in the end the decree ran, that the king and his heirs, and his said farmer, should hold and enjoy the land till the defendants should produce the deeds, and the court thereupon take further consideration and order. But two points fell out in this case very worthy the ob- Two points. servation. The first shortly thus. Anno 35 H. 8. there was great First point. controversy between William Lord Dacres and his children on the one part, and the heirs general of Sir James Strangways, for the lands of the same, Strangways. Whereupon in June, 35 H. 8. the king made an award between them, which award because it could not state the lands accordingly, afterwards in March, 35 H. 8. an act of parliament was made for ratification of the king's award, which was extant in the rolls of parliament, and now was certified under the great seal of England. The exception to disannul this act of parliament was thus. The bill passed first in the upper house, by the consent of the lords, which was sent down into the lower house, and from thence was returned with this indorsement or superscription on the body of the bill, a ceste bille [109 b] les commons sont assentus avec la provision annexe. [110] But there is no provision extant upon record. But that very bill, with that superscription or indorsement, and with the regal assent, and without any proviso indeed, is filed with the rest of the bills, and the king's assent unto it, and labelled with the rest, whereunto the great seal is set, as the course is in private acts, which are not enrolled without special suit, as general acts are; for general acts are always enrolled by the clerk of the parliament, and delivered over into the chancery; which enrolment in the chancery makes them the original record, (as it was resolved in John Stub's case ;) but in private acts the very body of the first bill, filed and sealed as aforesaid, and remaining with the clerk of the parliament, is the original record. The principal case standing thus, the defendant's counsel press the journal book of the upper house, for there was no journal book kept for the lower house till the time of E. 6. Concerning this bill which is thus in divers parts; Quarto Martii prima vice lecta est billa concerning the king's award for controversies between the Lord Dacres and the heirs general of Sir James Strangways the younger, &c. Cui quidem billæ proceres assenserunt. Item hodie missa est ad domum communem per regium attornatum et solicitat. billa, &c. And after, 18 Martii, hodie allata est a domo communi billa, &c. cum provisione eidem annexa; quæ prima et secunda vice lecta est, hodie commissa est regio attornato billa, &c. And after, 28 Mart. remissa est in domum communem per attornatum regium billa, &c. hodie cum procerum consensu et assensu cancellata est provisio pro hæredibus masculis · Jac. Strangways mil. billæ cuidam cui titulus est, &c. these three acts, the sending of it to the lower house, the bringing it from thence, and the cancelling of the proviso, all on this one day, 18 Mar. upon which they infer, that the commons, being assented with provision, had not assented to this act without provision, the same being cancelled by the lords, of their own heads. And so it is not an act of both houses, as it ought to be. But it is clearly resolved by us all, that this exception [110 a] was of no value, and consider it first by the act itself without the journal, next by the journal. The act itself hath no mention of a proviso, but in the endorsement as before, wherein what the proviso was (if any where) appears not. Why then if there were indeed no proviso, the assent of the lower house was absolute and perfect; for the referring of itself to that that was not, hurts not, and the mentioning of it doth not prove necessarily that there was such a proviso, no more, but rather less than in the earl of Leicester's case, Plo. 390; the mention and recital of his attainder did convince the truth of it. If there were a proviso, yet it might be sundry ways salvable, though it be not extant; for first, if it were lost by the fault of negligence of the keeper or clerk of the parliament, that must not avoid the whole act. But suppose that a proviso were cancelled by the lords only, yet it might be such a piece by itself, as this act that remains might be perfect and complete without it. And that three ways specially; Because it might be as a part by itself of a several effect from the rest of the act, though all were not in one chapter or continent of the act, as it is resolved in Dive and Manningham's case, Plo. 65. upon the stat. 23 H. 6. of sheriffs. It might be a proviso merely idle, elusory, or as it is termed flattering, Plo. 564. in the case of Unton upon the statute of wills, and the Duke of Norfolk's attainder. Thirdly, the matter intended by this proviso might be so sufficiently provided for by the act itself before, as this were mere surplusage, and then the omission of it could not prejudice. And to that opinion inclines 33 H. 6. 17. And that may seem to be the truth of this, for the proviso seems to have been only to preserve the right of the heirs males of Strangways; whereas there was a general saving in the act as it came from the lords, which served them as well as others, and that perhaps might be informed to the lower house, by the king's attorney, the twenty 2. 3. [110 b] eighth of March, when he carried it to them, as is said; which might be the reason of the cancelling of it. So this is the state of this act, as it appears any way in the record; out of which nothing can be enforced to annihilate the act. And it doth not appear that the lords did cancel the proviso, but that it was cancelled the twentyeighth day, with their consent, which twentyeighth day it was in the commons house, and brought from thence ut super, so it might be cancelled there, and the lords after consent to it. And all true and proper. And note, that there is a journal of that time of the house of commons, and the lords enter not in their journal the acts Then take the journal; it hath no men of the commons. tion of the effect of the proviso, but in one place, and that is only by way of a sum, not of a full and formal sentence. For if the proviso were indeed in no other form than is mentioned, proviso hæredibus masculis, &c. it were senseless and void, and no man may divine what it was to the avoiding of an act otherwise perfect. But now suppose that the journal were every way full and perfect, yet it hath no power to satisfy, destroy or weaken the act, which being a high record, must be tried only by itself, teste meipso. Now journals are no records, but remembrances for forms of proceedings to the record; they are not of necessity, neither have they always been. They are like the dockets of the pronotaries, or the particular to the king's patents. Co. lib. 2. 34. b. and 16 Eliz. 331. of the particular. The last intended parliament, 10 Jac. if you be judged by the journal, it was a large and well occupied parliament, yet because no act passed, nor re1 Ro. 29. p. 1. cord is of it, it was resolved by all the judges to be no parliament. [111] Ant. 78. Hutt. 61. The journal is of good use for the observation of the generalty and materialty of proceedings and deliberations as to the three readings of any bill, the intercourses between the two houses, and the like; but when the act is passed, the journal is expired. And in this journal there appears but one reading of the bill in the upper house where it passed, which is unlikely. But if the |