to the Jury upon the whole. The Jury withdrew, and after some Time gave a Verdict for the Defendants.
Bill of Exceptions.—Upon this Verdict, the Counsel for the Plaintiff prayed Leave to bring in a Bill of Exceptions; and produced in Court, and tendred to the three Judges to be sealed, a Parchment Writing in Form of such a Bill; in which, after a Recital of the Declaration and Issue in the Cause, 'tis alledged, That the Plaintiff's Counsel produced in Evidence the Grant of the Office to the Plaintiff; and that they shewed to the Court and Jury, that the Office is of the Grant of the Crown: And that to make out the Right of King Charles the Second to grant this Office to the Plaintiff, they gave in Evidence the 15 E. 3. which in the Bill is set out at large (and is in Substance as is before set forth.) And 'tis further alledged in the Bill, That the Justices refused to allow, admit and receive the Allegations and Matters given in Evidence as sufficient to prove the Plaintiff's Title to this Office, by Reason whereof the Jury found, That the Defendant did not disseise the Plaintiff; and prays that the Justices would put their Seals to it, according to the Statute of Westminster 2. cap. 31.
Refused by the Court, and why.—The Justices upon reading this Bill did refuse to Seal it,
1. Because 'tis asserted therein, That the Plaintiff's Counsel did shew that this Office was of the Gift and Grant of the King, whensoever it should be void; whereas there was no such Evidence to shew any such Right in the King offered, or pretended to, besides the Patent in Question and the Act of E. 3.
2. That the Judges refused to allow, admit and receive the Allegations and Matters given in Evidence for the Plaintiff as sufficient to maintain his Title; whereas they were given in Evidence and considered; and if it be meant as a sufficient Evidence to controul and over-rule all other; that doth not belong to the Court in Trials to determine, unless referred to them upon Demurrer to Evidence, but is the proper Business of the Jury: And if the Party be aggrieved, the Remedy is an Attaint. Nor can it be pretended that the Defendant's Evidence was admitted to over-rule the Re-[116]-cord produced: Because no Objection was made to the Defendants Evidence at the Trial; and the same was all given before the Record of 15 E. 3. was produced; and consequently the Jury must consider the Force of it; for Evidence on both Sides being given by the Law of England, the Decision of the Right belongs to the Jury; and the Act of E. 3. being repealed, 'tis no Matter of Law, but the most which could be made of it was, that it was Evidence, which must be left to the Jury, together with the Defendant's Evidence. But no Bill of Exception will lie in such a Case by the Statute, when the Evidence given is admitted as Evidence, and left to a Jury; and where no Opposition was made to the Defendant's Evidence, as here in this Case: And therefore in this Case a Bill of Exception could not be warrantable, because the Plaintiff's Evidence was not refused or over-ruled; nor was the Defendant's Evidence fit to be rejected, or so much as opposed by the Plaintiff. And as to the Allegations made by the Counsel, and not proved, those never could be an Exception. And for these and other Reasons the Judges refused to Seal their Bill.
Error in Parliament, and a Petition alledging the Record imperfect.—Upon this a Writ of Error is brought, and a Petition was exhibited to the Lords Spiritual and Temporal in Parliament Assembled, in the Name of the Lady Isabella Duchess of Grafton, and William Bridgman her Trustee, shewing that King Charles the Second granted the Office in Question to W.B. for the Lives of Henry Earl of Arlington, Henry Duke of Grafton, and of the Petitioner the Lady Isabella, in Trust for the Duke, his Executors and Administrators, to commence after the Death of Sir Robert Henly; that upon the Death of Sir Robert Henly, the Petitioner by Virtue of the said Grant was well entitled to the said Office; but was interrupted in receiving the Profits by Rowland Holt, Esq; Brother to the Lord Chief Justice Holt, and by Edward Coleman, Gent. who pretended to be admitted thereto by some Grant from the Chief Justice; that thereupon an Assize was brought for the said Office, which came to Trial; and the Petitioners Counsel insisted upon an Act of Parliament, proving the King to have the Right of granting the said Office, which the Judges would not admit to be sufficient to prove the King's Right to grant the same. That the Petitioner's Counsel did thereupon pray the Benefit of a Bill therein to be allowed,
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