record of the act itself carry its death's wound in itself, [111a] then it is true that the parchment, no nor the great seal, either to the original act, or to the exemplification of it, will not serve, as in the 4 H. 7. 18. where the act was by the king, with the consent of the lords, (omitting the commons,) and was judged therefore void. And he that observes the case 33 H. 9, 17. which was the only case relied upon by the defendant's counsel, shall find it so; and upon this rule the doubt to be conceived, scil. upon the parliament roll itself, not upon the journal.

For the case was, that Sir John Pilkington being charged with a rape, an act of parliament passed, that he should be proclaimed, and if he appeared not at the day, he should be attainted of the fact, and pay a fine to the party grieved. Now being taken and brought into the king's bench, he alleged that the act (whereof transcript was sent by mittimus out of the chancery into the king's bench) was not a sufficient act of parliament in law; for the act began with the commons and there passed, and was indorsed soit baile aux seignieurs; but where the bill was, that Sir John Pilkington should answer before Pentecost next, the lords indorsed the bill thus.

The lords granted or assented that he should answer before Pentecost 1452, which was the Pentecost twelve month. For the Pentecost next ensuing, taking this bill to pass as of the first day of the parliament, did incur sitting the parliament; for the parliament begun before Pentecost 1451, and the lords gave Pentecost 1452; and so said the defendant, there these two differing, the bill should have been returned to the commons to allow or not. Now Prisot and Markham asked if the bill came into the house after the Pentecost that incurred during the parliament, as conceiving that then Pentecost next ensuing, mentioned in the bill of commons, should not have been in law that Pentecost, but the same the lords made a year after, and so needed no return to the commons for a new consent; but if e converso, then otherwise. But that by later judgments is clear, that all bills take 1 Cro. 424. effect and work from the beginning of the parliament or Yelv. 127.

Post. 222.

[111] session, except it be otherwise ordained by the act itself.

Plo. 79. b. Dy. 74. b. 95. a. 511. a.

The other great point.

[112]

1.

Depositions without bill and answer.

2.

3

But in this case it is plain that the difference appeared in the body of the roll of parliament, not by a journal book. And the very certainty of the difference appeared also in the roll, which appears not so much as in the journal in this our case.

And yet Fortescue, chief justice of the king's bench, after all done, resolved in that case, 33 H. 6. 17. that it was an act of parliament, and they would be well advised before they annulled an act of parliament; peradventure it were best to refer it to the next parliament.

The other great point resolved in this present case was, that whereas this title between the king in the right of Francis Dacres stood partly upon the said act of parliament, and partly upon a feoffment made by William lord Dacres, anno 4 and 5 Phil. & Mar. and a reinfeoffment back again, whereby the state was to grow to Francis Dacres, which feoffment the defendants said was not lawfully executed, and that point had been examined before the council at York, in the eighth year of the late queen Elizabeth; the defendants required the use of the said depositions, which the king's counsel contended ought not to be granted unto them; and so the whole court resolved, for divers reasons contained particularly and at large in the decree; which were these.

Because the suit was by English bill in the very nature of a replevin to try the title of freehold of a whole barony in effect, without any mixture of equity at all.

Because it was between strangers to the remainder of Francis Dacres, by which the king claims; for there were three sons of William Dacres stated before it could come to Francis.

Because the point put in issue was an estate tail supported by Thomas Lord Dacres (the eldest son of William Lord Dacre then dead) in the time of H. 6. whereby he pretended the feoffment should be as by a remitter avoided, so the feoffment was not denied but admitted; and yet the tail was not a whit examined nor proved, but all bent to destroy the feoffment, so that it was said, that those depositions smelt of practice, and upon motion ought to [112 a] be suppressed, and therefore ought not here to be allowed.

Because the originals of those depositions at York were all gone, and there were also no exemplifications of them but in the hands of the defendants, so that the king must fight with weapons assigned him by parties adversary.

That this very point had been, by the late queen's commandment, very carefully examined in chancery, 28 Eliz. only upon petition, without bill and answer, between Francis Dacres the petitioner, and the earl of Arundel and his countess, and the lord William Howard and his lady, defendants, as they are now, wherein all the interrogatories were appointed to be perused by the chief justice, and the examinations made not by the examiner, but by certain doctors of law; at which time divers of these witnesses that had been examined 8 Eliz. were examined.

Those depositions were little questioned by the defendant's counsel, but were clearly allowed and read by the court, though they were without bill and answer; for they were by special direction in that cause, for expedition.

They were with such careful proceedings and reverend persons as before.

They were by consent of parties, and the then defendants examined very many witnesses therein. But out of this curiosity it was enforced, that the other depositions taken, no man knows how, were then either not known, or not regarded, nor ought now to be allowed.

4.

5,

6.

7.

8.

9.

taken in the

But the great and main reason that they were not allowed to be read here, was, because the court where Depositions they were taken was not holden competent, in a case of court of the this nature, and for depositions to be read in other courts. York in case And we all held it dangerous to give a precedent in refused in

this court with such assistance, and in such a case. And though it did not appear whether their instructions then

bare it, yet the reformations of late prove, that it was not allowable.

council at

of freehold

chancery.

[112b]

And though it were said that those depositions were allowed and given in evidence by the lord Coke, then attorney general, in 36 Eliz. upon an office at Carlile, taken before my lord chancellor, then master of the rolls, upon

on the attainder of Francis Dacres, which was also confirmed by my lord Coke; yet that moved us little, both because the case differs much between an inquest of office which admits a traverse, and this hearing which is final; and also because it is now contradicted and put to the judgment of the court, which must give answer judicially, which before passed in silence.

Trespass.

Verdict against law, whether it

TASKER VS. SALTER.

A verdict taken upon a matter which is not issuable, or upon matter out of the compass of the issue, is void.

TASKER brought an action of trespass of battery against

can save by the Salter: the defendant made justification by conveying

statute. Moor f. 867. 32 H. 8. cap. 30.

4 Co. 30. b.

[113]

himself an estate by copy, in a piece of ground, parcel of the manor of Church-house, whereof master Dean was seized, and the plaintiff came upon it, and he laid his hands molliter, &c.

The plaintiff replied and conveyed himself also an estate by copy of another piece or parcel of the same manor, and then laid that the same master Dean, &c. lord of the said manor, had had for him and his tenants, of this piece of ground, a way over the defendant's piece, &c. And thereupon issue taken and found for the plaintiff.

And the better opinion of the court was, that this was not holpen by the statute, because indeed this was no issue at all, nor thing nor possible issuable, and therefore the verdict must also be utterly void; for a verdict cannot make that good that the court sees cannot be in law, so that this is the office of the court to judge. But payment pleaded to a single obligation, though it be not a sufficient bar, yet it may be both in fact and in law.

And though it were said, that the substance of the issue [113 α] was no way; and if it had been laid in the issue by way of custom, the same evidence would have maintained it; so it was not but an error in form.

To which I answered, that since it is put in issue as before, so as it cannot stand in law, their verdict also is not to be taken against them, to make them subject to an attaint, if in another sense it be false.

Contract, B.19.

And I say, that if they had found a special verdict, that the custom had been for the way, as it should have been pleaded, et si, &c. the court would not have given Ant. 55, 73. judgment, as if the issue had been found for the plaintiff; Post. 117. for the special matter of the custom did not bear the issue, as it is taken upon a prescription void in law. And so upon the matter it is a verdict without an issue, and out of the compass of the issue. (1)

(1) Vide ante 52, Foster v. Jackson, and n. (1.)

STUKELEY US. UNDERHILL.

A confused issue may be aided by a verdict.

Replevin.

RICHARD STUKELEY, plaintiff, and Thomas Underhill, defendant, en replevin; le defendant avow pur dammage fesant; le plaintiff plead que il fuit seisi in fee d' un mess. et terre d' un acre, d' un autre mess. et terr.; and that they verdict upon two, and all those whose estate, &c. had common of feed- an issue coning, &c. in the place; and then conveys to himself the if this land had other house and lands for years, and then justifies the putting in of the beasts ; le defendant traverseth the prescription, and found for the plaintiff.

And though this prescription, thus confused for several, was grossly faulty, yet the verdict did save it by the statute. This was this Trinity term. (1)

(1) Vide ante 52, Foster v. Jackson, n. (4). Post. 117 b, Napper v. Jas

fused. Quære,

been upon de

murrer gener

al.