Mandatory Writs, as the Cases are in Yelvert' and Cro. Car. That the Lords had directed the Judges in many Things; and so they did in Jeffery Stanton's Case; that by Command under the Privy Seal Things have been done, which otherwise would not; and my Lord Shaftsbury was remanded to the Tower upon the Authority of that Case, 15 E. 3. the Statute says that the Peers shall Examine; for by great Men are meant the Peers.
[120] Then were urged certain Cases, where the Lords had commanded the Chancery to proceed speedily, and to give Judgment, &c. Earl of Radnor's Case; Englefield and Englefield, and other like Cases were quoted; and from thence they argued the Power of the Lords to command the Judges to do the Thing desired.
Argument against the Petition. Where a Bill of Exceptions is to be allowed.—'Twas argued on the other Side against the Petition to this Effect, That this was a Cause of great Consequence, in respect of the Persons concerned, as also of the subject Matter: It being the complaint of a Noble Peeress against three of the Judges, before whom she was lately a Suitor; and concerning the Jurisdiction of this House; that this Petition was the most Artificial which could be contrived to hinder the Justice of the Law, and to procure a Determination in Prejudice of two hundred thirty-five Years Enjoyment; that it is designed to get a Cause to be heard and adjudged on a Writ of Error by the Evidence on one Side only, or rather by that which was no Evidence at all, if the Copy produced at the Trial was true: For now upon the Return of what they desire, nothing of the Defendant's Evidence would or could appear. When a Bill of Exceptions is formed upon the Statute, it ought to be upon some Point of Law, either in admitting or denying of Evidence, or a Challenge, or some Matter of Law arising upon Fact not denied, in which either Party is over-ruled by the Court. If such Bill be tendred, and the Exceptions in it are truly stated, then the Judges ought to set their Seal in Testimony that such Exceptions were taken at the Trial: But if the Bill contain Matters false or untruly stated, or Matters wherein they were not over-ruled, then they were not obliged to affix the Seal; for that would be to command them to attest a Falsity. A Bill is not to draw the whole Matter into Examination again: 'Tis only for a single Point; and the Truth of it can never be doubted after the Bill is sealed; for the adverse Party is concluded from averring the Contrary, or supplying an Omission in it.
This Bill was without Foundation; the Plaintiff was not over-ruled in any one Point of Law. 'Tis true, the Counsel desired the Opinion of the Court after all the Defendant's Evidence had been heard, concerning their Record; and the Judges did declare, that they thought it did not extend to the Office in Question, but to the Clerk of the Crown, who is the chief Clerk in Court, and hath Precedency. And the Grant of that Office by the King, both before and since that supposed Act, proves that to be meant, and not the Office in Question, which hath always been granted by the Chief Justice; and this was afterwards left to the Jury. Here was no Cause for a Bill of Exceptions, the Judges, at the Counsels Desire, gave their Opinion upon the Thing, but did not over-rule them; for that the Act being repealed could make no Point of Law, but only be Evidence for the Jury to consider.
[121] Besides, this Act, tho' repealed, is inserted in the Bill as an Act in force; and if an Act be set out, and no Repeal appears, it must be understood to be in Force; and if the Bill had been sealed, it must have been taken as in Force, and the Defendants could not here upon the Writ of Error have shewn the Repeal, which was in the 17 E. 3. and appeared so upon the Evidence; from whence 'twas inferred, That this Bill was too Artificial. If any Point of Law had arisen upon the whole Evidence (and a particular Point there was none) the whole ought to have been inserted in the Bill, or at least all that which concerned that Matter.
If this should be allowed, 'twould be in the Power of any Counsel to destroy any Verdict; as in Case of a Title by Descent from Father to Son, and a Will of the Father had been produced and proved at the Trial, and a Bill had been sealed, only shewing the Seisin and Descent, the Son must prevail, tho' he had no Title. This is enough to shew that the Judges are not obliged; nay, are obliged not to seal this Bill.
Then it was argued, That the present Complaint is beneath the Honour, and
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