enough; for the Printing of a Case doth not alter or change the Nature of it: 'Tis as much Authority if it be not published, as when it is so. Masters recovered a Judgment against Sir Herbert Whitfield, and after the Judgment Sir Herbert was outlawed at another Man's Suit, and his Land's seized into the Protector's Hands, and afterwards Masters took out an Elegit; and the whole Court was of Opinion, that the Lands being seized into the Protector's Hands before the Elegit was sued out, there could not be an Amoveas manus awarded, altho' the Judgment was prior to the Outlawry. This is the same with the Case at Bar. And tho' it may be surmised, That this was an Opinion vented in Evil Times, yet 'tis well known, that excepting their Criminal Proceedings in those Times, the Law flourished, and the Judges were Men of Learning, as Mr. Justice Twisden hath often affirmed upon the Bench. 'Twas further urged, that Prerogative was to be favoured; that 'twas a Part of the Law, 2 Inst. 296. especially when 'twas used, as in this Case, to help an honest Man to his Debt. That confessing of Judgments was oftner practised by Fraud to Cover Mens Estates, than Outlawries were to defeat just Judgments. That if this Judgment was just and honest, 'twas his own Default not to sue an Elegit immediately. Then were cited many Cases to prove the King's Prerogative, as Fleetwood's Case, 8 Rep. 171. York and Athen's Case, Lane's Rep. 20. Hob. 115. 2 Roll's Abridg. 158. Stevenson's Case, 1 Cro. 389, 390. 'Twas argued that nothing could be inferred from Tanfield's Opinion in 2 Roll's Abridg. 159. which is also in Lane's Rep. 65. for there the Debt was not a Debt to the King, till after the Death of the Testator; but here is a Forfeiture to the King before the Elegit sued. And admitting that the King hath only the Pernancy of the Profits, yet while he hath so, no other Person can intermeddle; for the King is intitled to all the Profits, even to a Presentment to a Church, which was void before the Outlawry. As is Beverly's Case, 1 Leon. 63. 2 Roll's Abridg. 807, and Oland's Case, 5 Rep. 116. And Process of Outlawry is to be favoured and encouraged, as 'tis a Means for the Recovery of just Debts; and the Effects of them, by Forfeiture to the King, ought to be favoured as a Prerogative, wherewith the King is intrusted to that Purpose. 'Tis a Penalty or Judgment upon him to be put Extra Legem, because he contemns the Law, and will not obey it; so that as to him, 'tis the greatest Justice in the World, that he should not enjoy any Benefit of his Estate by Virtue of the Law, during the Time that he despises it. And as to Baden, 'twas his own Default that he did not extend sooner. He trusted the Party longer than he should, and for that he may thank himself. Wherefore upon the whole 'twas prayed that the Judgment should be affirmed; and it was affirmed.
[76] Hall & al' Executors of Tho. Thynne v. Jane Potter Administratrix [1695].
[15 Lds. Jo. 638.]
Marriage Brocage Bond. 3 Lev. 411.—Appeal from a Decree of Dismission in the Court of Chancery. The Case was thus; That Thomas Thynne, Esq; having Intentions to make his Addresses to the Lady Ogle, gave a Bond of 1000l. Penalty to the Respondent's Husband to pay 500l. in ten Days after his Marriage with the Lady Ogle; the Respondent assisted in promoting the said Marriage, which afterwards took Effect; soon after the said Thynne was barbarously murdered and about six years after Mr. Potter brought an Action upon this Bond against the Appellants, as Executors of Mr. Thynne, and proving the Marriage recovered a Verdict for the 1000l. Thereupon the Appellants preferred their Bill in Chancery to be relieved against this Bond, as given upon an unlawful Consideration. The Defendants by their own Answer acknowledge the Promotion of that Marriage to be the Reason of giving the Bond. Upon hearing the Cause at the Rolls, the Court decreed the Bond to be delivered up, and Satisfaction to be acknowledged upon the Judgment. The Respondent petitioned the Lord Keeper for a Re-hearing; and the same being re-heard accordingly, his Lordship was pleased to Reverse that Decree,
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