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commune cum altera, quàm etiam respectu ordinis, & scripturae, ex quo licèt uterque contineatur sub eadem rubrica, Paragraphi tamen sunt prorsus separati, & unus valdè distat ab alio cum' intermedio aliorum quatuordecim differentis materiae: Admitti potest in qualitatibus, conditionibus, seu clausulis validis, justis, & subsistentibus, atque generaliter favorabilibus, tam Clericis, quàm Laicis pro communi omnium Civium utilitate, in quibis terminis loquuntur, Bald. loco allegato, caeterique adducti per Tiraqu. ut ipsemet se explicat sub dict. numer. 7. vers. neque enim hic diutius, idemque probat Seraph. de privil. juram. privil. 77. num. 26. vers. sed certè his non obstantibus. Secus autem quando, prout hic, qualitas statuti est nulla, injusta, & odiosa, tendens expressè in damnum, & odium Clericorum. Ista enim tanquam principaliter contra libertatem Ecclesiasticam, & expressam mentionem faciens de Clericis, habetur perindè, ac si facta, & apposita non fuisset, ut ratiocinatur Socc. sen. cons. 122. sub num. 6. vers. secunda, quia prima pars lib. I. Castropal. ubi supra par. I. tit. de leg. in commun. & ejus caus. tract. 3. disp. I. punct. 24. § 6. num. 1. Carol. de Grass. dict. effect. 2. num. 28 vers. tunc enim; & consequenter acceptata parte valida, & favorabili tantùm abest, quòd Clericus uti debeat dicta parte nulla, & odiosa, quòd imò etiam volens illa uti non potest, ut concludit Sperell. dec. 11. num. 30.

Et pro justitia resolutionis duo ulteriùs Domini ponderabant: Alterum, quòd statutum excludit tantummodo Clericos ab executoria, firmo manente in reliquis Testamento, ideòque extendi non debet ad casum nostrum, quo Jo: Baptista fuit haeres institutus, ne aliàs corruat etiam ipsum testamentum contra mentem statuentium: Alterum, quòd ipsi statuentes intellexerunt de executore dando in prophanis, ne Clerici se immisceant in negotiis Laicorum, à quibus etiam de jure abstinere tenentur, ut in Cap. I. & per tot. 88. distinct. & in cap. te quidem 11. q. I. Non autem de executore, prout hic, operis pii, & relicto pro exoneranda conscientia defuncti, metiendo voluntatem à potestate, cum Laici statuere nequeant super re spirituali, cap. tua de ordin. cognat. cap. lator, qui fil. sint legit.

Soccin. sen. consil. 35. n. I. lib. 1. Carol. de Grass. alleg. effect. 2. num. 81.

Caeterùm dum Antonia Testatrix haeredem instituit Joan. Baptistam sub fide, quòd exoneraret conscientiam suam, ut legitur in ipsomet testamento, ibi, Et hà eletto la persona di d. Sign. Gio: Battista, perche è certa, che per l'attinenza del sangue, e grado, che ha di Sacerdote, userà ogni diligenza, acciò la coscienza di d. Testatrice, della quale è in questa parte intieramente informato, resti pienamente sodisfatta: Censetur principaliter contemplasse favorem salutis aeternae, & animae sublevamentum, proindeq; dispositio dicitur ad pias causas, ex theor. Bald. in auth. similiter n. 2. vers. & dicitur, C. ad. falc. Bart. in repetit. lib. I. num 33. C. de Sacros. Eccles. Florian. de S. Petr. in l. cum quidam, § dies n. 2. vers. dicitur autem, ff. de usur. Ang. in l. precibus num. 5. vers. idem, C. de impub. & aliis subst. benè Jas. cons. 110. num, 7. lib. I. Crot. cons. 194. num. 4. lib. 2. Jo: Baptista de thor. in addit. ad Tiraquell. de privil. piae caus. in praefat. vers. item relictum pro incertis cum seqq. Rot. dec. 245, num. 29. part. 7. recent. Quae substinetur cum duobus solis Testibus, cap. relatum de testam. Rot. divers. decis. 74. num. 12. cum seqq. part 2.

Et ità conclusum utraque parte informante, &c.

APPENDIX No. 3.

(See Page 206.)

Opinion of Chas. R. Hildeburn, Esq., upon the question whether the lower counties upon Delaware were a transmitting or a non-transmitting colony.

The Historical Society of Pennsylvania.

1300 LOCUST STREET, PHILADELPHIA, February 25th, 1892.

DEAR SIR: In reply to your question as to whether the acts passed by the Assembly of the Government of New

castle, Kent and Sussex upon Delaware, commonly called the Three Lower Counties of Pennsvlvania. were ever transmitted to England for approval or disallowance by the Crown, I think I am justified in answering in the negative. The Public Record office in London contains more or less complete manuscript series of the acts passed by the "transmitting colonies," and much matter concerning their consideration and the action taken upon them by the Crown.

But there is no evidence to be found in that office that the acts of this Assembly were ever transmitted or considered. And the notes of the Crown's action, which are to be found in almost all the printed collections of acts of the transmitting colonies, are entirely absent from all the editions of the "Laws of the Government of Newcastle, Kent and Sussex upon Delaware."

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Order of the King in Council, upon the appeal of John Winthrop against Thomas Lechmere, annulling the Law of Connecticut, entitled "An act for the settlement of Intestate Estates."

At the Court at St. James's, the 15th day of February,

1727.

Present:

The King's Most Excellent Majesty,

Lord President,

Lord Privy Seale,

Lord Steward,

Lord Chamberlain,

Duke of Ancaster,

Duke of Newcastle,

[L. S.]

Earl of Lincoln,

Earl of Westmoreland,

Earl of Berkeley,

Earl of Scarborough,

Earl of Loudoun,
Earl of Uxbridge,

Earl of Sussex,

Viscot. Cobham,

Viscot. Torrington,

Lord Berkeley of Stratton,
Lieut. General Wills,

Sr. Robert Sutton.

Upon reading this day at the Board a report from the Rt. Honorable the Lords of the Committee for hearing Appeals from the Plantations, dated the 20th day of December last, in the words following, viz:

In obedience to an Order in Council of the 13th of May last referring to this committee the humble petition and appeal of John Winthrop, of New London, in his Majesty's Colony of Connecticut, Esq., only son and heir at law of Major General Waite Winthrop, of Boston in New England, Esq., his late father, deceased (to which appeal the petitioner was admitted by his late Majesty's Order in Council of the 28th of March last), their Lordships this day took the said petition into consideration; which said petition sets forth (amongst other things), the charter of incorporation granted to the said Province by King Charles the second, on the 13th of April, in the fourteenth year of his reign, by which the lands of the said Colony are held of the Crown, as of the manor of East Greenwich in Kent, in free and common soccage, and the laws which they are empowered to make are to be wholesome and reasonable, and not contrary to the law of England; and that the petitioner was possessed of and entitled to a very considerable real estate in the said Province, as heir at law to his said father Waite Winthrop, and his uncle the Honourable Fitz John Winthrop, both deceased: That his said father Waite Winthrop dyed intestate, leaving issue only the petitioner and one daughter, Anne, who was preferred in marriage in her

father's life time to Thomas Lechmere, of Boston afore. said, merchant; and that on his said father's death he became entituled to all his real estate whereof he dyed seized in fee, as his heir at law; and that on the 21st of February, 1713, at the court of probates held for the county of New London in Connecticut, letters of administration were granted to the petitioner of the goods, chattels, rights and credits of his said father, and he entered into bond to the judge of the said court of probates in 3,000 7. penalty, with condition for his making a true inventory of all and singular the goods, chattels and credits of the said deceased, and exhibit the same into the registry of the said court of probates, and truly to administer the same according to law. But the petitioner having paid and advanced more to and for and on account of the said Thomas Lechmere than the said Anne his wife's share of the said intestate's personal estate come to the petitioner's hands amounted to, and the said Thomas and Anne Lechmere having possessed most part of the said Waite Winthrop's personal estate, and not having required the petitioner to exhibit any inventory or account of his administration, and the petitioner having discharged all his said father's debts, save only one bond for 300 7. on which he duly discharged all interest, and would have paid off the principal but the obligee declined accepting the same, the petitioner did not, for these reasons, think it necessary to exhibit any inventory or account of his said administration. But, in order to ruin and oppress the petitioner, six years after the said letters of administration so granted to the petitioner (viz): in July, 1724, the said Thomas Lechmere applied to the court of probates, insisting he was, in right of his wife, entitled to a proportion of the said Waite Winthrop's real estate, but that he was kept thereout by the petitioner's not having inventoried and administred the same, and caused the petitioner to be summoned by the court of probates, to show cause why he neglected to inventory the intestate's estate and finish his administration according to his bond; upon which the petitioner exhibited an inventory of the said intestate's personal estate in the said court of pro

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