writ of quo minus more.pdfCOUNTERCLAIMS in Intervention. Writ of Right, Writ of Possession, POSSE:...

COUNTERCLAIMS in Intervention. Writ of Right, Writ of Possession, POSSE: No. 2:91-cv-00768-JAM-JFM

QUO MINUS INCIDENTAL AND PEREMPTORY ABSOLUTE SOVEREIGN MANDAMUS 1

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John F. Hutchens, sui generis, expert Curator; Chancellor ad hoc & ad litem P.O. Box 182, Canyon, Ca. 94516 925-878-9167 [email protected] Two Miners and Three Minors and 8000 acres of land - Owner/Operator, Grantee & Agent & Factor. writ of quo minus INTERVENTION IN THE UNITED STATES OF AMERICA

NORTHERN DISTRICT OF CALIFORNIA MR. JOHN F. HUTCHENS, MINER ad finemFARMER/ DEBTOR/ STATESMAN/ DAD/DISASTER ASSISTANCE DIRECTOR JOINT VENTURER, INSPECTOR, curator In Re: IRON MOUNTAIN MINE et al on behalf of all similarly situated, Ex rel: T.W. Arman & John F. Hutchens, on behalf of all classes CAFA certification

v. UNITED STATES EPA–DOJ-DOA-DOI-DOE

CALIFORNIA EASTERN DISTRICT COURT

HONORABLE JUDGE JOHN A. MENDEZ

v. JOHN F. HUTCHENS

v. WILLIAM LOGAN / LOGAN & GILES

v. BAYER CROP SCIENCES fka AVENTIS

v. LIGHTHORSE VENTURES, LLC

v. STEPHEN B. LOPEZ

v. STATE OF CALIFORNIA

v CH2MHILL

v. AIG – AISLIC – AIG CONSULTANTS

v. IRON MOUNTAIN OPERATIONS, LLC

AND DOES 1-100: adverse claims defendants

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

QUO MINUS – WS10-0507 – CONTRA COSTA REMOVAL- CIVMSC07-00955 CONTRA COSTARELATED CASES-CONCURRENT JURISDICTIONUSDC-CES Civ. 2:91-cv-00768- USCA No. 09−17411,

USCFC No. 09-207 L, &c. CLASS ACTIONS - JUDICIAL DIVISION & REDISTRICTING

ADVERSE CLAIMS, DISCOVERIES, REPRISALWRONGFUL TAKING, FALSE PRETENSES, &c.

ABSENCE OF DELECTUS PERSONAE, QUI TAM

INTERVENTION IN CAMERA STELLATA;

APPLICATION OF THE MONROE DOCTRINE

WITH VERIFICATION BY AFFIDAVIT; DANGERS TO OUR PEACE AND SAFETY;

APEX LAW ACTION; REMISSION; REVERSION; DETINUE SUR BAILMENT; VOID & VACATE LIEN & VACATE CONSENT DECREE & VACATE PREMISES & ABOLISH COERCIVE MONOPOLY; ABOLISH ESTABLISHED HOLISTIC BELIEFS.



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INTERVENTION BY RIGHT, COMMISSION OF SPECIAL PRIVATE INSPECTOR GENERAL

We consider a question that has split the federal courts: May a non-settling PRP intervene in litigation

to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from

the settling PRP? We join the Eighth and Tenth Circuits in holding that the answer is “yes.”

in looking at the substance of the matter, they can see that it "is a clear, unmistakable infringe-

ment of rights secured by the fundamental law." Booth v. Illinois , 184 U.S. 425 , 429 .

MOTION OF THE RELATOR FOR SUPERSEDEAS & CONSOLIDATION

PURSUANT TO RULE 42(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE

“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is

deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.

“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the

court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss

the action.” Melo v. US, 505 F2d 1026. Court for the Eastern District shall be held at Redding.

Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HJZkgsS

28 USC 84 - Sec. 84. California US Code - Title 28: Judiciary and Judicial Procedure

Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HIWPdJQ

a private party may “recover expenses associated with cleaning up contaminated sites.”

United States v. Atl. Research Corp., 551 U.S. 128, 131

VENUE

§ 371. a. Venue.—In local actions, where possession of land is to be recovered, or damages for an

actual trespass, or for waste,' etc., affecting land, the plaintiff must lay his declaration or declare his

injury to have happened in the very county and place that it really did happen; but in transitory ac-

tions, for injuries that might have happened anywhere, as debt, detinue, slander and the like, the

plaintiff may declare in what county he pleases, and then the trial must be in that county in which the

declaration is laid. Though if the defendant will make affidavit that the cause of action, if any, arose

not in that but in another county, the court will direct a change of the venue or visne (that is, the

vicinia or neighborhood in which the injury is declared to be done), and will oblige the plaintiff to

declare in the proper county. For the statutes 6 Richard II, c. 2 (Venue in Actions for Debt, 1382),



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and 4 Henry IV, c. 18 (Attorneys, 1402). having ordered all writs to be laid in their proper counties,

this, as the judges conceived, empowered them to change the venue, if required, and not to insist rig-

idly on abating the writ; which practice began in the reign of James the First." And this power is dis-

cretionally exercised, so as not to cause but prevent a defect of justice. Therefore the court will not

change the venue of any of the four northern counties previous to the spring circuit; because there the

assizes are holden only once a year, at the time of the summer circuit. And it will sometimes remove

the venue from the proper jurisdiction (especially of the narrow and limited kind), upon a suggestion,

e 2 Ventr. 239. a Rastell t. Detto. 18-1. b. Fit*. Abr. t. Iiriofe. IS. Salk. 670. Tryc's Jus Filiz. 231. Styl.

Pract. Beg. (edit. 1657) 331. duly supported, that a fair and impartial trial cannot be had therein.*

California Choice of Law, Jurisdiction & Venue Clauses

Posted In California Sui Generis , Legislation

The boilerplate section of many corporate agreements include a “governing law” provision. Often

these provisions cover three related, but distinct choices – choice of law, choice of jurisdiction, and

choice of venue. More importantly, the legal principles that govern these choices are not the same (at

least here in California). In today's posting, I discuss a California choice of law statute that may be

unfamiliar to many California lawyers. In upcoming posts, I'll discuss some surprising aspects of

choice of jurisdiction and choice of venue clauses.

Section 1646 of the California Civil Code establishes a general choice of law rule for contracts: “A

contract is to be interpreted according to the law and usage of the place where it is to be performed;

or, if it does not indicate a place of performance, according to the law and usage of the place where it

is made.” In 2006, the legislature added § 1301 to the California Commercial Code to add to and

make specific the concept expressed in Civil Code § 1646. [I have for several years taught a class in

commercial law (Articles 2, 2A and 7) at Chapman University School of Law .]

There's not too much surprising there. What is interesting is that the legislature later decided to add

an exception to § 1646 by enacting § 1646.5. Thus, notwithstanding § 1646, the parties to a contract

relating to a transaction involving at least $250,000, including a transaction covered by Commercial

Code § 1301(a), may agree that California law governs their rights and duties in whole or in part,

whether or not the contract or transaction bears a reasonable relation to California.



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CHAPTER 13 TERRITORIAL APPLICABILITY AND GENERAL RULES Sec. 1301. Territorial applicability; parties' power to choose applicable law. 1302. Variation by agreement. 1303. Course of performance, course of dealing and usage of trade. 1304. Obligation of good faith. 1305. Remedies to be liberally administered. 1306. Waiver or renunciation of claim or right after breach. 1307. Prima facie evidence by third-party documents. 1308. Performance or acceptance under reservation of rights. 1309. Option to accelerate at will. 1310. Subordinated obligations. Enactment. Chapter 13 was added April 16, 2008, P.L.57, No.13, effective in 60 days. § 1301. Territorial applicability; parties' power to choose applicable law. (a) Agreement; reasonable relation requirement.--Except as otherwise provided in this section, when a transaction bears a reasonable relation to this Commonwealth and also to another state or nation, the parties may agree that the law either of this Commonwealth or of such other state or nation shall govern their rights and duties. (b) Absence of agreement; approved relation requirement.--In the absence of an agreement effective under subsection (a), and except as provided in subsection (c), this title applies to transactions bearing an appropriate relation to this Commonwealth. (c) Mandatory applicability of title.--If one of the following provisions of this title specifies the applicable law, that provision governs, and a contrary agreement is effective only to the extent permitted by the law so specified: (1) Section 2402 (relating to rights of creditors of seller against sold goods). (2) Sections 2A105 (relating to territorial application of division to goods covered by certificate of title) and 2A106 (relating to limitation on power of parties to consumer lease to choose applicable law and judicial forum). (3) Section 4102 (relating to applicability). (4) Section 4A507 (relating to choice of law). (5) Section 5116 (relating to choice of law and forum). (6) Section 8110 (relating to applicability; choice of law). (7)Ch. 93 Subch. A (relating to law governing perfection and priority).

§ 400. (aa) In real actions.—This, by the statute of 32 Henry VIII, c. 2 (Prescription, 1540), in a writ

of right is sixty years; in assizes, writs of entry or other possessory actions real, of the seisin of one's

ancestors, in lands, and either of their seisin, or one's own, in rents, suits and services, fifty years; and

in actions real for lands grounded upon one's own seisin or possession, such possession must have

been within thirty years. By statute 1 Mar., st. 2, c. 5 (Limitation of Actions, 1554), this limitation

does not extend to any suit for advowsons, upon reasons given in a I 307 ' former chapter." But by

the statute 21 Jac. I, c. 2 (Crown Suits, 1623), a time of limitation was extended to the case of the



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king: viz., sixty years precedent to 19 February, 1623; c but, this becoming ineffectual by efflux of

time, the same date of limitation was fixed by statute 9 George III, c. 16 (Crown Suits, 1768), to

commence and be reckoned backwards, from the time of bringing any suit or other process, to re-

cover the thing in question; so that a possession for sixty years is now a bar even against the preroga-

tive, in derogation of the ancient maxim, "nullum tempus occurrit regi (no time runs against the

king)." By another statute, 21 Jac. I. c. 16 (Limitation, 1623), twenty years is the time of limitation in

any writ of formedon, and, by a consequence, twenty years is also the limitation in every action of

ejectment; for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter

on the lands, 4 and by the statute 21 Jac. I, c. 16, no entry can be made by any man, unless within

twenty years after his right shall accrue.

Last Chancellor to the Curia Regis of the Armanshire by-writ of quo minus

FACILITY COMPLIANCE AUDITOR –DUE DILIGENCE

The U.S. District Court for the District of Maryland has determined that the requirements for inno-

cent landowners contained in the 2001 Small Business Relief and Brownfields Revitalization Act do

not apply retroactively. Accordingly, the court ruled that a landowner may file a CERCLA Section

107 cost recovery action against a waste generator because the landowner had fulfilled the innocent

landowner requirements that were in place when the property was purchased.

The case involves a contaminated site where Mineral Pigments Corporation (which later became

known as Rockwood Pigments NA, Inc.) dumped metal-bearing wastes into sand and gravel pits dur-

ing the 1960s and 1970s. Later, 1325 G Street Associates ( G Street ) bought the site without realiz-

ing that it was contaminated.

The court ruled that Rockwood must reimburse G Street more than $181,000 for past response costs.

Further, the court held that Rockwood is liable for G Street 's future response costs at the site. The

September 7, 2004 decision was handed down in 1325 G Street Associates, LP v. Rockwood Pig-

ments NA, Inc. (Docket Number: DKC 2002-1622).

Site History

Since the 1960s, Mineral Pigments Corporation (now Rockwood Pigments NA, Inc.) has manufac-

tured metal-based pigments for use in paints and other products at its facility in Beltsville , Maryland



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. Wastes containing chromium, lead, and zinc are generated during the processes. From the late

1960s to the early 1970s, pigment wastes were disposed in mined-out sand and gravel pits located on

land then owned by the Contee Sand and Gravel Company, Inc. (CSG). The CSG site is located ap-

proximately one mile west of the Mineral Pigments facility. During this period, about 50,000 gallons

of liquid waste sludge containing lead, chromium, and zinc were dumped at the CSG site every two

weeks....

INNOCENCE, PRESUMPTION OF - The indictment or formal charge against any person is not

evidence of guilt. Indeed, the person is presumed by the law to be innocent. The law does not require

a person to prove his innocence or produce any evidence at all. The Government has the burden of

proving a person guilty beyond a reasonable doubt, and if it fails to do so the person is (so far as the

law is concerned) not guilty.

Presumption of Innocence

The concept of the presumption of innocence had its roots in the Common Law, long established in

Britain and thence in America . Besides being a part of the environment of justice in which our

Founders lived, the concept is central to the ideas of Freedom and Due Process of Law. In addition,

the common sense of any reasonably enlightened people must dictate that a person accused is inno-

cent until proven guilty, just as much as they would believe that the other rights of defendants must

be reasonably protected. Those protections for the accused were incorporated by the Founders into

the Fourth, Fifth, Sixth and Seventh Articles of the Bill of Rights , and could not have been of any

import had there not first been a presumption of innocence.

A close parallel to the presumption of innocence is the presumption of freedom -- that freedom is not

something the government rations to the people, but rather a birthright the people own in its entirety,

to be loaned back in small parts to the government with their knowing consent. The presumption of

freedom is guaranteed by the Ninth and Tenth Articles of the Bill of Rights -- too often made light of

today, but of key importance to the concept of individual Liberty . Those Articles demand, in es-

sence, that unless specifically stated to the contrary by the Constitution, the people shall be presumed

to own every freedom, as well as the power of self-determination.



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If a citizen cannot be presumed innocent until proven guilty, he likewise will not be presumed to

have freedom without an argument over his right to that freedom. At that juncture, both freedom and

innocence yield to the convenience of government.

In both cases, the opposite must prevail if we are to call ourselves Americans.

The principle that there is a presumption of innocence in favor of the accused is the undoubted law,

axiomatic and elementary, and its enforcement lies at the foundation of the administration of our

criminal law.

It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the

decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5,

126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3,

31-58; Greenleaf on Evidence, part 5, ? ? 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evi-

dence, ? 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United

States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State

v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31;

People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3

Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State,

44 Alabama, 15.

Greenleaf traces this presumption to Deuteronomy , and quotes Mascardus De Probationibus to show

that it was substantially embodied in the laws of Sparta and Athens . Greenl. Ev. part 5, section 29,

note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law

was pervaded with the results of this maxim of criminal administration , as the following extracts

show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper

witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable

proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

[click on more to read additional quotes]

The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal

charge in his absence, because it was better to let the crime of a guilty person go unpunished than to



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condemn the innocent ." Dig. L. XLVIII, Tit. 19, 1. 5.

"In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit.

XVII, 1. 56.

"In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2.

"In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit.

XVII, 1. 192, s. 1.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement

of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the

Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented him-

self with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius,

"a passionate man," seeing that the failure of the accusation was inevitable, could not restrain him-

self, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of

the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Re-

rum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other

fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum

Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici His-

pani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in pre-

cise words stated to be a part of the common law is involved in doubt. The writer of an able article in

the North American Review, January, 1851, tracing the genesis of the principle, says that no express

mention of the presumption of innocence can be found in the books of the common law earlier than

the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment,

for there can be no doubt that, if the principle had not found formal expression in the common law

writers at an earlier date, yet the practice which flowed from it has existed in the common law from

the earliest time.

Fortescue says : "Who, then, in England can be put to death unjustly for any crime? since he is al-

lowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good

repute, against whom he can have no probable cause of exception, can find the person accused guilty.

Indeed, one would much rather that twenty guilty persons should escape the punishment of death



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than that one innocent person should be condemned and suffer capitally ." De Laudibus Legum An-

gliae, Amos' translation, Cambridge , 1825.

[*456] Lord Hale (1678) says : "In some cases presumptive evidence goes far to prove a person

guilty, though there be no express proof of the fact to be committed by him, but then it must be very

warily pressed, for it is better five guilty persons should escape unpunished than one innocent person

should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and

though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that

in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape

than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presump-

tion of innocence had been evolved as a principle and applied at common law is shown in

McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a

treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and

thinking it probable, it imports an obligation to commit a capital crime. That has been and is my im-

pression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am

sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think

that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this

presumption is to be found in every code of law which has reason, and religion, and humanity, for a

foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every

judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to

it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short

only absolute certainty."

Exercising your constitutional right cannot be converted into a crime or have sanctions levered

against it: The state cannot diminish rights of the people. [Hertado v. California, 100 US 516.] Where

rights secured by the Constitution are involved, there can be no rule making or legislation which

would abrogate them. [Miranda v. Arizona, 384 US 436, 491.] There can be no sanction or penalty

imposed upon one because of this exercise of constitutional rights. [Sherer v. Cullen, 481 F

946.]"judges of courts of limited jurisdiction are entitled to absolute immunity for their judicial acts



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unless they act in the clear absence of all jurisdiction." King v. Love, 766 F.2d 962, 966 (6th Cir.),

cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985).

In Federalist No. 33 (next to last para), Hamilton says:

…But it will not follow…that acts of…[the federal government] which are NOT PURSUANT to its

constitutional powers, but which are invasions of the residuary authorities of the..[the States], will

become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be

treated as such…[Art. VI, cl. 2] EXPRESSLY confines this supremacy to laws made PURSUANT

TO THE CONSTITUTION … [emphasis in original]

In the next paragraph, Hamilton points out that a law made by Congress which is not authorized by

the Constitution,…would not be the supreme law of the land, but a usurpation of power not granted

by the Constitution….

b) Second, note that Art. VI, clause 2 also shows that only laws of States which are Contrary to the

Constitution must fall. States may make whatever laws they wish (consistent with their State Consti-

tutions) except as prohibited by the US Constitution. Laws specifically prohibited to the States are

listed at Art. I, Sec. 10. States also may not properly make laws which contradict the Constitution.

For example, a State Law which purported to permit 25 year olds to be US Senators would contradict

Art. I, Sec. 3, clause 3, and thus would fail under the “supremacy clause”.

It is not …a mere possibility of inconvenience in the exercise of powers, but an immediate constitu-

tional repugnancy that can …alienate and extinguish a pre-existing right of sovereignty [in the

States]. (4th para)

The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign

power; and the rule that all authorities, of which the States are not explicitly divested in favor of the

Union, remain with them in full vigor…[This]is…clearly admitted by the whole tenor of

the…proposed Constitution. We there find that, notwith-standing the …grants of …authorities [to the

federal government], there has been the most pointed care in those cases where it was deemed im-

proper that the like authorities should reside in the States, to insert negative clauses prohibiting the

exercise of them by the States…[Art. I, Sec. 10] consists altogether of such provisions. This circum-

stance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of



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the body of the…[proposed Constitution], which…refutes every hypothesis to the contrary. (5th

para)

The People ex. Rel. Hutchens, moves this Court, pursuant to Rule 42(a) of the Federal Rules of Civil

Procedure, to consolidate the following cases: Civ. 2:91-cv-00768- USCA No. 09−17411, No. 09-

70047, USCA No 09-71150 , USCFC No. 09-207 L.

The People ex. Rel. Hutchens moves for concurrent jurisdictions and class action fairness certifica-

tion for the purposes of TRESPASS, ADVERSE CLAIMS, EJECTMENT judgment and appeal.

The cases are appropriate for consolidation for the following reasons:

1. The cases involve common questions of law. All causes of action allege that the usurpation, inva-

sion, and occupation of Iron Mountain Mine violates Section 7 of the Clayton Act, as amended, 15

U.S.C. § 18, and Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. and general mining law.

2. The cases involve common questions of fact because they arise from the same factual situation.

3. Judicial convenience and economy will be promoted by consolidation of the actions. Consolidation

will result in one trial which will bind all plaintiffs and defendants. This will save time and avoid un-

necessary costs to the defendants, the plaintiffs in the actions, witnesses who would otherwise be re-

quired to testify in two cases, and this Court.

4. Consolidation will not delay the final disposition of this matter.

WHEREFORE, the Relator requests that its motion for concurrent jurisdictions be granted.

Held: The reference to “administrative” reports, audits, and investigations in §3730(e)(4)(A) encom-

passes disclosures made in state and local sources as well as federal sources. Pp. 4–21.

writ of certiorari - ABOLISH EPA-CERCLA-SUPERFUND:

EX POST FACTO; BILL OF ATTAINDER; CRIME OF INFAMY;

Is, or is not, the act contrary to the provisions of the fifth amendment

to the Constitution of the United States?

Does, or does not, the act, directly or indirectly, deprive any person

of property without due process of law?

Is the State deprived by the Act of any right guaranteed to it in the Constitution of the United

States, or therein implied?



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"If the purpose of this statute was to divest the title of the owner of land in this way, It is unconstitu-

tional. . . . It would be a proceeding which condemns without hearing, proceeds without Inquiry, and

renders judgment without trial. It would not be due process of law" Alexander v. Gordon, 101 Fed.

91, 98, 41 CCA 228

The sole test of adverse holding under the statute is whether the true owner is actually disseized for

the limitation period. "Actual occupancy of land to the exclusion of the true owner, regardless of

whether in good faith or bad faith . . . satisfies the calls of the statute. Such adverse possession of part

of a tract under color of title, with Intent to claim the whole, in legal effect extends to the boundaries

of the tract." Ovier v. Morrison, 142 Wis. 243, 247, 125 NW 449 (per Marshall, J.).

"U.S. Marshall McKeough explained the object of the meeting in a few pertinent remarks. He said

that Mr. Hutchens told him on yesterday that unless they give up the water in the creek aforesaid, that

he, Hutchens, would take a body of men and take the water by force of arms and hold the same until

he and his men were whipped off the ground.

His party as above mentioned claim right of possession of the water, and are suing for breach of pat-

ent, false claims, and wrongful taking by deceit.

In this dilemma Mr. Arman calls upon all his fellow-miners and countrymen to assist him in defend-

ing his rights, agreeable to the old miners' laws.

They said that this was a serious affair, they are willing to defend the old established miners' laws

and the right."

"Pursuant to adjournment meeting met at 1 o'clock, were called to order by the tenant-in-chief, Mr.

Hutchens.

Committee reported as follows, having thoroughly investigated the laws and customs of the miners of

Iron Mountain.:

We fully concur in the opinion that Mr. Arman is fully entitled to all the water in Slickrock Creek,

Boulder Creek, Spring Creek, and Flat Creek, except four torn-heads each, which is allowed for the

beds of the streams ; also that the burning of his forest, and the destruction of his dam and other

property and the taking of his water from his race by force of arms are malicious acts, and should not

be submitted to by those who are in favor of law and order.



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"On motion, the report was received and the committee discharged.

"On motion it was 'Resolved, That we assist Mr. Arman in turning the water into his race and that we

sustain him to the last extremity in keeping it in the race.'

"On motion, the meeting then adjourned for the purpose of carrying this resolution into effect."

The United States certainly has an interest in protecting the thousands of citizens in the United States

of this class action from unconscionable environmental laws violating constitutional protections,

fundamental rights, private property rights and other rights retained by the people, but the United

States California attorneys are moot.

Because of § 3729. False claims, with qui tam and 811, 1085, and 1107 & 1160 Code of Civil Pro-

cedure, and the likelihood that this matter could go on indefinitely, the Court should issue quo minus

in this case.

NOTICE: IMPOSITION OF PROPRIETARY CONTROL BY THE RESIDENT DEPUTY

FIRE MARSHALLS - FOREST WARDENS - CHANCELLOR OF THE GALES &

STANNARIES - OCTOBER 2010

The circuit court erred in not analyzing U.S. and California law as to whether the EPA actions are

both procedurally and substantively unfair and unconscionable. You generally examine the first and

second factors together. See Bauman, 557 F.2d at 654 (the second factor “is closely related to the

first”).Inc., 409 F. Supp. 2d 1196, 1201 (C.D. Cal. 2006),

Differing court interpretations of a statute "is evidence that the statute is ambiguous and unclear."

U.S. v. Iron Mountain Mines, Inc., 812 F. Supp. 1528, 1557 (E.D. Cal. 1993).

False Claims to obtain a DETERMINATION OF PROBABLE CAUSE under Section 107(1) of

CERCLA, 42 U.S.C. §9607 (1); CERCLA lien provisions; and under CERCLA Due Process Re-

quirements.

False Claims of Steven W. Anderson, Regional Judicial Officer May 4, 2000)

False Claims of James Pedri, Rick Sugarek, Kathleen Salyer, Keith Takata.

Because all five Bauman factors favor relief, and none militates against it, you should conclude that

the balance of factors favors issuing all the writs. The district court’s consent decree should be stayed

by rule 62(g)(h), and the intervention should be granted with;



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RECOGNIZANCE OF THE WARDEN OF THE ARBORETUM; FREEMINERS CHANCELLOR

ABOLISH EPA-CERCLA-SUPERFUND: UNCONSTITUTIONAL LAW

The act is contrary to the provisions of the fifth amendment to the Constitution of the United States.

The act, directly and indirectly, deprives these persons of property without due process of law.

The State is deprived by the Act of right guaranteed to it in the Constitution of the United States, or

therein implied.

Writ of quo minus

The U.S. District Court for the District of Maryland has determined that the requirements for innocent

landowners contained in the 2001 Small Business Relief and Brownfields Revitalization Act do not

apply retroactively. Accordingly, the court ruled that a landowner may file a CERCLA Section 107

cost recovery action against a waste generator because the landowner had fulfilled the innocent land-

owner requirements that were in place when the property was purchased.

Let him who takes a thief, or to whom one taken is given, and he then lets conceals the theft, pay for

the thief according to his wer. If he be an ealdorman, let him forfeit his shire, unless the king is will-

ing to be merciful to him. [ 8 ]

That a thief shall be pursued.... If there be present need, let it be made known to the hundredman, and

let him make it known to the tithingmen; and let all go forth to where God may direct them to go. Let

them do justice on the thief, as it was formerly the enactment of Edmund I . [ 9 ]

And the man who neglects this, and denies the doom of the hundred, and the same be afterwards

proved against him, let him pay to the hundred xxx. pence; and for the second time lx. pence, half to

the hundred, half to the lord. If he do so a third time, let him pay half a pound; for the fourth time, let

him forfeit all that he owns, and be an outlaw, unless the king allow Him to remain in the country. [10]

"The principal, the vital defect in the existing law," says Chief Justice Beatty (Report, page 396), "is

this permission to make local rules. There are, I have reason to believe, other important defects in the

law, but as to most of these there are more competent judges, and I leave it to them to point out the

evil and suggest a remedy. But as to- the practical workings of the local rules and customs of miners,

when allowed the force of law, I have very decided opinions, which I feel that my means of knowl-

edge justify me in stating with some confidence in their correctness. I believe that the whole subject



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of mining locations is an extremely simple one, which may easily, and certainly therefore ought to

be, regulated by one general law, the terms and existence of which shall be established by public and

authentic records, and not left to be proved in every case by the oral testimony of witnesses, or by

writing contained in loose papers or memorandum-books, such as are often dignified by the name of

'mining records.' I am convinced, moreover, that the tainting of every mining title in the land at its

very inception with the uncertainty which results from the actual or possible

existence of rules affecting its validity, perfectly authentic evidence of which is nowhere to be found,

is a stupendous evil.

Experience has demonstrated that such an uncertain state of the law is a prolific source of litigation,

and no experience is required to convince any man of ordinary intelligence that it must have the ef-

fect of depreciating the value of all unpatented claims by deterring the more prudent class of capital-

ists from investing in them. That the subject is simple enough to be embraced in one general law is

proved by the fact that the laws of the various districts, although differing in details, are in substance

identical, and are substantially contained in the existing acts of Congress.

Obiter dictum in the whole decision of Judge Ross is the following:

"The power to absolutely prevent the use of such waters for the objectionable purposes necessarily

includes the power to prescribe the terms and conditions upon which they may be so used." (81 Fed.

Rep. 254.) Taken in connection with the facts of the case, however, this language would simply mean:

"The power to absolutely prevent the use of such waters for the objectionable purposes necessarily

includes the power to prescribe the terms and conditions without which they may not be so used."

The decision simply decides the constitutional right of the government to protect the navigability of

the streams by closing down, through legislation, any hydraulic mine in these watersheds which has

not submitted itself to the jurisdiction of the commission. The miner will not be heard to say in resis-

tance that he is being deprived of his property without due process of law. That is settled, but that is

all that is settled, by the judicial construction thus far given to the Act. Is the working of the Act re-

ciprocal? The miner is bound with hooks of steel; but how about the farmer is he likewise bound? Is

the State of California bound? For the purposes of any miner who desires to take his chances

under the act, the test of its constitutionality should be made in some case brought against a company



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or person operating under a duly obtained permit from the commission, and not in a case against a

company or person not operating under such permit. Moreover, the test should be made in

defending a case where a farmer attacks the Act on the ground that some constitutional right of his is

being abridged, or where the people of the State of California (on relation of the Attorney-General)

attack it on the ground that some of their constitutional rights are being abridged, by the action of a

miner operating under a duly obtained permit from the commission. No other test will settle the

point. The permit of the commission is already a finality as far as the miner is concerned. Is it a final-

ity as far as the farmer and the State are -concerned? To settle this point, the questions to be pre-

sented by a farmer or by the State, under the two sets of cases above set forth, are the following : Is,

or is not, the act contrary to the provisions of the fifth amendment to the Constitution of the United

States? Does, or does not, the act, directly or indirectly, deprive any person of property without due

process of law? Is the State deprived by the Act of any right guaranteed to it in the Constitution of

the United States, or therein implied? It is contended in behalf of the miner that neither the farmer

nor the State is deprived by the Act of any property or right without due process of law; that, inas-

much as the commission has complete jurisdiction to modify or revoke its permit at any time, the

farmer and the State are not necessarily deprived by the Act of any "day in court" either may desire.

Obviously, unless the permit of the commission contemplated by the Act is a finality as far as the

courts are concerned, the statute is an injury instead of a boon to the miner. If, however, the permit is

such a finality, and the Act is declared constitutional in such a case as the above, then the farmer and

the State will, instead of going into the courts, have to submit to the jurisdiction of the commission

equally with the miner, and the present threatened interminable litigation would be at an end. The

sooner the question is conclusively settled the better, if there is to be any practical resumption of hy-

draulic mining in the basins of the Sacramento and San Joaquin Rivers.

In the basins of the Klamath and the Trinity, on the other hand, hvdraulic mining is happily free. Na-

ture, that has handicapped the industry in one section of the State, has favored it in another. These

rivers are non-navigable, and their banks for the most part precipitous. In these river basins the only

foe the industry has to contend with is the occasional blackmailer. The courts have, however, miti-

gated the power of these people for evil in two well-considered decided cases. The rule of the deci-



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sions with reference to hydraulic mining or navigable streams is separated by a district cleavage from

the rule with reference to non navigable running streams. Judge Field, always the friend of mining, in

a decision of the Supreme Court of the United States (Atchison vs. Peterson, 20 Wallace, 507), up-

held the refusal of the lower court (in Montana) to issue a writ of injunction where a prior appropria-

tor of water claimed his water was injured by tailings from a hydraulic mine, pointed out the extreme

reluctance that should guide courts in the issuance of this writ, and held that the question whether,

upon a petition or bill, asserting the prior rights of the first appropriator have been invaded, a court of

equity will interfere to restrain the acts of the party complained of, will depend on the character and

extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would

afford adequate remedy, whether the parties are able to respond for the damages resulting from the

injury, and other considerations.

Nor is the adjoining mine owner permitted to become a dog in the manger. The Supreme Court of

this State on March 18, 1896, rendering its decision in the case of Jacob vs. Day, (in Cal. 571), held

that the use of water for the purpose of carrying off the tailings, and the construction of a ditch to aid

therein, are as essential to the successful conduct of hydraulic mining, as is the first use to which the

water is put in washing down the natural bank; and that the title to an adjoining mine passes under

patent from the United States subject to the easement of the right of way for a ditch used, in accor-

dance with focal mining customs, as a tailrace from a hydraulic mine across the patented ground

prior to the patent under the provisions of sections 2339 and 2340 of the Revised Statutes of the

United States. That the easement for the tailrace of a hydraulic mine is not an easement for drainage

within the meaning of section 2338 of the Revised Statutes of the United States, excluding easements

for drainage from the purview of the act of Congress; but it is a right to the use of water for mining

purposes and for the construction of ditches for such purposes within the meaning of sections 2339

and 2340 of said statutes. That an ease ment must be used in such a manner as to impose as slight a

burden and damage as possible; but where a tailrace of a hydraulic mine is an easement upon pat-

ented mining ground, the fact that the running of tailings through the tailrace in the ordinary course

of mining caused a small portion of the ground alongside of the ditch to cave down and wash away,

and caused the tailrace to cut farther into the bedrock, but without material and appreciable injury to



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the plaintiff, does not entitle the owner of the patented ground to an injunction.

While the law of mining has through enactment and decision gradually become settled, until there

remains but comparatively few doubtful points to be still construed, and but few amendments to bet-

ter the legislation we already have, mining itself in the great ledges of California is little more

than begun. It is true that, except where some ancient river channel is occasionally found, the days of

the placers are passing with the romance and the glamour of the Pioneers. Quartz mining is destined,

however, to be a permanent industry of the State. New men, new methods, and increased facilities for

operations have made of it a recognized business instead of a gamble. The history of the law of min-

ing in the future will more and more partake of the general features incident to litigation growing out

of other industries, and the element of uncertainty will be confined more and more to that element of

uncertainty found in all litigation; that which is produced by the shifting sands of evidence,

-JOHN F. DAVIS. Jackson, Cal., Dec. 9, 1901

Keswick dam to Cottonwood Creek; Final Listing Decision: Delist from 303(d) list. June 15, 2010;

EPA has not yet implemented ICs (Institutional Controls) as required at the IMM Superfund Site in

the five signed RODs (EPA, 1986; EPA, 1992; EPA, 1993; EPA, 1997; EPA, 2004)

"the revised PHG of 300 g/L is two orders of magnitude greater than the applicable numeric chemi-

cal-specific standards identified in ROD 5 for the protection of freshwater aquatic life." Rick Suga-

rek, EPA project manager for Iron Mountain Mine Superfund cleanup, 2008 5 year review.

QAPP Information: QA Info Missing; No further evidence required to facially apparent facts

ABSOLUTE ORDER FOR TEMPORARY INJUNCTIVE RELIEF FOR CEQA EIS REVIEW

CHAPTER X - Of Treaties and Ambassadors, and the Entire Dissolution of States.

I. <Wars in general are setled by treaties>. The chief laws of nature about treaties were explained in

the doctrine of contracts in natural liberty.{* } But we must remember that the exception of unjust

force and fear cannot be admitted against the obligation of any treaties of peace; otherwise the old

controversies <that occasioned the war> might always be kept a-foot. And yet such exceptions may

justly take place when the war is manifestly and avowedly unjust on one side; or if the terms imposed

{by the more potent side} are manifestly injurious and contrary to all humanity. In these cases the



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party injured may insist upon an arbitration; and if the other side refuse to submit to it, each side must

by force consult its own safety and the maintenance of its rights{, by what aids it can find}.1

Treaties are divided into real, and personal: the personal, which are less in use, are entered into in fa-

vour of the prince's person, and cease to bind upon his demise. The real, respect the body of the peo-

ple, or the nation, which is deemed immortal. 2 Treaties are also divided into the equal, {such as bring

equal or proportionable burdens on each side,} and unequal {which bring unequal burdens}.3 But 'tis

not every unequal treaty that any way impairs or diminishes the† majesty and independency of the

side submitting to the greater burden.

Hostages in former ages were securities commonly given for performance of treaties, but they are

now gone into disuse; because it would be exceedingly <barbarous and> inhumane to treat the inno-

cent hostages any way harshly because of the perfidy of their country.

II. In making treaties ambassadors <or intermediaries> are employed. Their rights are all the same,

whatever names are given them, if they are entrusted to transact the affairs of a sovereign state. Their

persons should be sacred and inviolable, as we said above. They have a just natural right to demand

that their proposals should be delivered. But as to an allowance to reside any time in the state to which

they are sent, they may claim it as due out of humanity, but cannot insist on it as a perfect right. Since

the business of the more active ambassadors is much the same with that of spies upon the nations

where they reside. If they are allowed to reside; the law of nature would give them no higher rights or

immunities, than any other foreigner might claim without any publick character.4 But by the volun-

tary laws of nations, they have many singular privileges and immunities, both for themselves and all

their necessary retinue: all which however any state might without any iniquity refuse to grant them, if

they give timeous intimation of their design to do so to all concerned.

190 See Lucas v. S.C. Coastal Comm’n, 505 U.S. 1003, 1031–32 (1992). Once a mining claim is de-

termined to constitute a valid property interest, then state law will control how it can be sold, trans-

ferred, inherited, and the like—unless any particular aspect of that property right is preempted by

federal law. See Duguid v. Best, 291 F.2d 235, 239, 242 (9th Cir. 1961).

191 See Lucas, 505 U.S. at 1031–32.

192 480 U.S. 470, 519 (1987) (quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,



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161 (1980)) (alterations in original). See also Palazzolo, 533 U.S. at 630; Lucas, 505 U.S. at 1016

n.7; Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 20–24 (1990) (providing a detailed ar-

ticulation of the principle that state law defines the nature of property rights); Kinross Copper Corp.

v. Oregon, 981 P.2d 833 (Or. App. 1999) (denying a waste water discharge permit for mining on fed-

eral mining claims not a taking because there is no right to pollute), cert. denied, 531 U.S. 960

(2000).

193 See, e.g., M & J Coal Co. v. United States, 47 F.3d 1148, 1153 (Fed. Cir. 1995) (discussing the

impact of federal law of navigational servitude and submerged lands on property definitions); see

also Lucas, 505 U.S. at 1029 (discussing the submerged lands and navigational servitude); Scranton

v. Wheeler, 179 U.S. 141, 163 (1900) (defining property rights in the context of submerged lands);

Palm Beach Isles Assocs. v. United States, 208 F.3d 1374 (Fed. Cir. 2000) (navigational servitude),

aff’d, 231 F.3d 1354 (Fed. Cir. 2000), reh’g en banc denied, 231 F.3d 1365 (Fed. Cir. 2000). In Palm

Beach Isles, the court found that a permit denial for environmental reasons, rather than navigational

reasons, did not invoke the navigational servitude “background principle.” Id. at 1384.

194 978 F.2d 1269, 1276 (D.C. Cir. 1992).

195 Id. at 1275–76.

196 Id. at 1277–87.

197 278 F.2d 842, 847 n.4 (9th Cir. 1960) (citing United States ex rel. Tenn. Valley Auth. v. Powel-

son, 319 U.S. 266, 279 (1943)); see also Richmond Elks Hall Ass’n v. Richmond Redevelopment

Agency, 561 F.2d 1327, 1330 (9th Cir. 1977) (holding that federal courts are not bound by state law

but look to it for aid in discerning the scope of property interests). These formulations may be incon-

sistent with Justice O’Connor’s dissent in Preseault, 494 U.S. at 20–24.

198 Adaman, 278 F.2d at 847.

199 Id.

200 See id.

201 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027, 1030 (1992) (quoting Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972)).



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202 See id. at 1028–29.

203 See, e.g., Schneider v. Cal. Dep’t. of Corr., 151 F.3d 1194, 1200–01 (9th Cir. 1998).

The . . . Court’s recognition of the unremarkable proposition that state law may affirmatively create

constitutionally protected “new property” interests in no way implies that a State may by statute or

regulation roll back or eliminate traditional “old property” rights. As the Supreme Court has made

clear, “the government does not have unlimited power to redefine property rights.” . . . Rather, there

is, we think, a “core” notion of constitutionally protected property into which state regulation simply

may not intrude without prompting Takings Clause scrutiny.

Id. at 1200 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)). Justice

Marshall, in his concurrence in Pruneyard Shopping Center v. Robins, noted:

I do not understand the Court to suggest that rights of property are to be defined solely by state law,

or that there is no federal constitutional barrier to the abrogation of common-law rights by Congress

or a state government. The constitutional terms “life, liberty, and property” do not derive their mean-

ing solely from the provisions of positive law. . . . Quite serious constitutional questions might be

raised if a legislature attempted to abolish certain categories of common-law rights in some general

way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core”

common-law rights, including rights against trespass, at least without a compelling showing of neces-

sity or a provision for a reasonable alternative remedy.

447 U.S. 74, 93–94 (1980) (Marshall, J., concurring).

The Ninth Circuit observed:

“[T]here is, we think, a ‘core’ notion of constitutionally protected property,” and a state’s power to

alter it by legislation “operates as a one-way ratchet of sorts,” allowing the states to create new

property rights but not to encroach on traditional property rights.” . . . [W]ere the rule otherwise,

States could unilaterally dictate the content of—indeed altogether opt out of both the Takings Clause

and the Due Process Clause simply by statutorily recharacterizing traditional property-law concepts.

Wash. Legal Found. v. Legal Found. of Wash., 236 F.3d 1097, 1108 (9th Cir. 2001) (quoting Schnei-

der, 151 F.3d at 1200–01), reh’g, 271 F.3d 835, 841 (9th Cir. 2001) (en banc), cert. granted, 122 S.



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Ct. 2355 (2002) (No. 01-1325).

Lawrence H. Tribe writes:

To the degree that private property is to be respected in the face of republican and positivist visions, it

becomes necessary to resist even an explicit government proclamation that all property acquired in

the jurisdiction is held subject to government’s limitless power to do with it what government wishes.

Indeed, government must be denied the power to give binding force to so sweeping an announcement,

. . . if we are to give content to the just compensation clause as a real constraint on [government]

power . . . . [E]xpectations protected by the clause must have their source outside positive law.

Record Settlement to Cleanup One of the Nation's Most Toxic Waste Sites. The United States and

California reached an agreement with Aventis CropSciences USA, Inc. that will fund cleanup costs

that could approach $1 billion at the Iron Mountain Mine Superfund Site near Redding, California.

The settlement is one of the largest settlements with a single private party in the history of the federal

Superfund program. Through the creation of a unique funding vehicle that will generate $200-300

million over 30 years with a $514 million balloon payment in year 30, the settlement assures that

money is available each year for long-term operation of a pollution treatment and control system

needed to prevent toxic discharges from the site. This site has been one of the largest point sources of

toxic metals in the United States, and the source of the most acidic mine drainage in the world.

Aventis will also pay federal and state trustees $10 million for natural resource restoration projects.

Federal sovereign immunity

"Though this was the intent of the Congress [to waive sovereign immunity] in passing the 1972 Fed-

eral Water Pollution Control Act Amendments, the Supreme Court, encouraged by Federal agencies,

has misconstrued the original intent." S. Rep. No. 370, 95th Cong., 1st Sess. 67 (1977), reprinted in

1977 U.S.C.C.A.N. 4326, 4392. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, [section]

116, 91 Stat. 711 (1977); see also Clean Water Act Amendments of 1977, Pub. L. 217, [subsection]

60, 61(a), 91 Stat. 1597, 1598 (1977).

In virtually every instance where a government has suggested that ordinary environmental regula-

tions that prohibit ordinary development activities can be insulated from the Takings Clause because

the prohibited activity is alleged to be a “nuisance,” the government has lost. The Court of Federal



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Claims and the Federal Circuit Court of Appeals, the courts with the most experience in examining

takings claims in the context of federal wetland regulations, have expressly rejected this notion in

every case where it has considered the idea Other courts have agreed as well. Most importantly, the

United States Supreme Court in Lucas was highly skeptical of the idea that building a home in a resi-

dential subdivision could constitute a common law nuisance.

In Just v. Marinette County, the Wisconsin Supreme Court held that “[a]n owner of land has no abso-

lute and unlimited right to change the essential natural character of his land so as to use it for a pur-

pose for which it was unsuited in its natural state and which injures the rights of others.” Just was

cited with approval by the Washington Supreme Court in Orion Corp. v. Washington: “Orion never

had the right to dredge and fill its tidelands.” A similar result was reached by the New Hampshire Su-

preme Court.216 However, in Florida Rock Industries, Inc. v. United States, the Federal Circuit found

housing to be a more valuable use than swampland, while the court in Loveladies Harbor, Inc. v.

United States expressly rejected the Just formulation as illogical. More significantly, after Lucas was

decided, some courts have begun to expressly reject the notion that a prohibition on filling wetlands

can constitute a background principle of state law. This makes some sense, as for many years it was

public policy to fill wetlands.

2. Is the Public Trust Doctrine a Relevant Background Principle?

When riparian wetlands are at issue, a relevant inquiry is whether the proposed use of the wetland in-

terferes with the public trust doctrine. Public trust rights traditionally have included the right to access

navigable waterways for fishing and navigation. Modern commentators argue that the public trust also

includes recreational and ecological values. Thus, any regulation that would restrict the ability of an

individual to utilize a private property interest in a resource subject to the public trust would not have

a cause of action for a taking because in reality the private property interest never really existed in the

first place. In fact, some commentators such as Professor Sax posit that property rights should be re-

defined to make them more akin to water rights and subject to an analogous “ecological public trust.”

California Health and Safety Code Section 25548

The California legislature, like Congress, took action in 1996 and enacted California Health and

Safety Code section 25548–the California law analogous to CERCLA section 107(n). The stated in-



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tent of section 25548 is “to specify the type of lender and fiduciary conduct that will not incur liability

for hazardous material contamination.” As such, section 25548 provides exemptions and limitations to

potential fiduciary liability under the environmental laws. Thus, section 25548 residually identifies the

universe of potential liability for fiduciaries. Specifically, section 25548 addresses the exceptions to

and limitations on “the liability of trustees, executors, and other fiduciaries for hazardous material

contamination involving property that is part of the fiduciary estate.”

Section 25548.3 eliminates personal liability for fiduciaries by confining their potential liability to the

estate assets. The caveats come in section 25548.5, which makes it clear that fiduciaries do not have

blanket immunity from liability under the environmental laws.63 The protection of the limitation of

liability in section 25548.3 will not apply where (1) that liability results from the fiduciary’s negli-

gence or recklessness; (2) the fiduciary conducts a removal or remedial action without providing

proper notice to the appropriate agency; (3) the potential liability results from acts outside the scope of

the fiduciary duties; (4) the fiduciary relationship is fraudulent in that its raison d’être is to avoid li-

ability; or (5) the fiduciary is also a beneficiary, or benefits from acting as fiduciary, in a manner over

and above that considered customary or reasonable for a fiduciary. see also: United States v. New-

mont USA Ltd., 504 F. Supp. 2d 1050, 1061–69 (E.D. Wash. 2007) (concluding, without actually

adopting the “indicia of ownership” test in Long Beach Unified Sch. Dist. v. Dorothy B. Godwin Cal.

Living Trust, 32 F.3d 1364 (9th Cir. 1994), that the United States held sufficient indicia of ownership

in an Indian reservation to be held an “owner” under CERCLA);

1. The defendant acquired title to the property subsequent to the disposal or placement of the hazard-

ous substance.

2. The defendant acquired title to the property through inheritance or bequest.

3. The defendant “provides full cooperation, assistance, and facility access to the persons that are au-

thorized to conduct response actions at the facility (including the cooperation and access necessary for

the installation, integrity, operation, and maintenance of any complete or partial

response action at the facility).”

4. The defendant “is in compliance with any land use restrictions established or relied on in connec-

tion with the response action at a facility.”



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5. The defendant “does not impede the effectiveness or integrity of any institutional control employed

at the facility in connection with a response action.”

With respect to beneficiary ownership for CERCLA purposes, creation of an express trust in Califor-

nia historically vested full title of trust property in the trustee or trustees. The California legislature

repealed this statute in 1986, so the modern rule may now apply. The modern rule holds that creation

of a trust divides title such that the trustee or trustees take legal title, and the beneficiary or beneficiar-

ies take equitable title.

For purposes of evaluating the potential CERCLA liability of a trust beneficiary based on his or her

status as owner, the initial question is whether the equitable interest held by trust beneficiaries is suf-

ficient to support liability.

With respect to whether title was acquired via inheritance or bequest, CERCLA defines neither “in-

heritance” nor “bequest.” CERCLA case law also provides no clear rules or definitions for what ex-

actly constitutes an inheritance or bequest. Reasoning from the dictionary definitions of

“inheritance,” “bequest,” and “devise,” property taken through testamentary trusts or intestate succes-

sion would likely constitute inherited or bequeathed property, as the property interest transfers upon

the death of the prior owner. No federal court opinions addressing this issue of whether inter vivos

trusts or lifetime gifts constitute an inheritance or bequest for purposes of the inheritance or bequest

defense exist. The only authority on point is Tamposi Family Investments, an opinion of the Envi-

ronmental Protection Agency Appeals Board.

In Tamposi, the Appeals Board rejected petitioner’s argument that a gift from a father to a real estate

investment partnership, in which his children were the exclusive partners, should qualify

for the inheritance or bequest defense. Citing Black’s Law Dictionary definitions for “inheritance,”

“bequest,” and “devise,” the Appeals Board found that the text of CERCLA indicated that the inheri-

tance or bequest defense was inapplicable to inter vivos transfers, as the defense only applied to trans-

fers occurring upon death of the prior owner. Since it is the sole authority on point and an analysis of

CERCLA by an arm of the EPA itself, courts considering the issue in the future will likely find Tam-

posi highly persuasive and may defer to the agency’s interpretation. Thus, the best option for settlers

wishing to protect beneficiaries from CERCLA liability during the lifetime of the settlor is to use tes-



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tamentary trusts and devises in wills to transfer interests in impacted property. They should then pro-

vide bequests to beneficiaries that may enjoy limited liability status due to the form of business (such

as an LLC not comprised of beneficiary members). Combining these steps with thoughtful timing of

sales or distributions to occur after cleanup, or in an otherwise protective manner, are also optional

protective measures. However, there is currently no authority as to what structures will be effective.

The most

important fact for beneficiaries to keep in mind is that the estate, and therefore any property in trust,

will always be fully liable if the settlor was personally liable. The question is how to avoid or mini-

mize the personal liability of the beneficiaries. This approach is entirely consistent with the settlor’s

intent and legal status: the settlor owned the property, the settlor was personally liable, and the settlor

intended to give the beneficiary what he possessed during his life. 129 Id.

Although extremely persuasive, the decision is not a perfect interpretation of CERCLA. Tamposi’s

primary flaw is on the issue of inquiry. The Appeals Board cites to the congressional comments on

CERCLA as support for the contention that individuals who take impacted property by inheritance or

bequest must still conduct “reasonable inquiry” into the contamination, even if they have no knowl-

edge of the inheritance or bequest. Id. at 125. Perhaps this was the intent of certain individual

members of Congress, but this failed to make its way into the text of the statue.

Nevertheless, the presence of this language in Tamposi raises the possibility that some level of in-

quiry, albeit a very low level, will be required of owners who take title by inheritance or bequest.

Potential beneficiaries may be able to disclaim property placed in trust for their benefit. See, e.g.,

CAL. PROB. CODE § 15309 (West 2002) (“A disclaimer or renunciation by a beneficiary of all or

part of his or her interest under a trust shall not be considered a transfer under Section 15300 or

15301.”). While an enticing theoretical solution, practically this is not a good option where the prop-

erty value exceeds, or will exceed, the cost of remediation.

The California Code of Regulations addresses taxation rules for changes in ownership in title 18, sec-

tion 462. Section 462.160 pertains to trusts. Subsection (a) of section 462.160 provides the

general rule that transfer of real property interests into trusts, by the settlor or anyone else, is a change

in ownership; subsection (b) provides instances excluded from this rule. Subsection (c)



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provides the general rule that termination of a trust or any portion of a trust, constitutes a change in

ownership, and subsection (d) provides the exceptions to this second general rule. These rules for ex-

clusions and exceptions–for example, those transfers of interests that do not constitute changes in

ownership–are complex and are therefore presented in the Appendix in tabular form in an attempt to

simplify comparisons. While untested in the courts, would-be settlers and/or beneficiaries may be able

to use these rules as a guide for selecting trusts that will make CERCLA owner liability for the bene-

ficiaries less likely, or at least delay such potential liability until such time as the property may be

transferred with less or no risk. Given the foregoing, it appears that the best overall strategy is to an-

ticipate transfers in property, to attempt to structure such transfers to fall within the statutory defenses,

and to preserve and pursue rights against other potentially responsible parties.

CAMERA STELLATA AND “THE BILLION DOLLAR SETTLEMENT”

EPA, DOJ, AIG, Bayer & AstraZeneca, successor to Stauffer Chemical, & Jardine Matheson

Bayer CropScience is with annual sales of about EUR 6.5 billion one of the world's leading innovative

cropscience companies in the area of crop protection (Crop Protection), non agricultural pest-control

(Environmental Science), seeds and plant biotechnology (BioScience).

Aventis CropScience formed through merger of AgrEvo and Rhône-Poulenc Agro. Bayer Crop-

Science formed through Bayer's acquisition of Aventis CropScience. AstraZeneca liable for claim by

Iron Mountain Mine

AstraZeneca was formed on 6 April 1999 through the merger of Astra AB of Sweden and Zeneca

Group PLC of the UK – two companies with similar science-based cultures and a shared vision of the

pharmaceutical industry.

Jardine Matheson (original owner of Mountain Copper Co., Iron Mountain Inv. Co.)

The Group's interests include Jardine Pacific, Jardine Motors, Jardine Lloyd Thompson, Hongkong

Land, Dairy Farm, Mandarin Oriental, Jardine Cycle & Carriage and Astra International. These com-

panies are leaders in the fields of engineering and construction, transport services, insurance broking,

property investment and development, retailing, restaurants, luxury hotels, motor vehicles and related

activities, financial services, heavy equipment, mining and agribusiness. The Group also has a minor-

ity investment in Rothschilds Continuation, the merchant banking house.



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Incorporated in Bermuda, Jardine Matheson Holdings Limited has its primary share listing in London,

with secondary listings in Bermuda and Singapore. Jardine Matheson Limited operates from Hong

Kong and provides management services to Group companies.

LAST CHANCELLOR TO THE CURIA REGIS OF THE ARMANSHIRE

The Act of 1487 (3 Hen. VII.) created a court composed of seven persons, the Chancellor, the Treas-

urer, the Keeper of the Privy Seal, or any two of them, with a bishop, a temporal lord and the two

chief justices, or in their absence two other justices. It was to deal with cases of "unlawful main-

tainance, giving of licences, signs and tokens, great riots, unlawful assemblies"; in short with all of-

fences against the law which were too serious to be dealt with by the ordinary courts. The jurisdiction

thus entrusted to this committee of the council was not supplementary,

therefore, like that granted in 1453, but it superseded the ordinary courts of law in cases where these

were too weak to act. The act simply supplied machinery for the exercise, under special circum-

stances, of that extraordinary penal jurisdiction which the council had never ceased to possess. By an

act of 1529 an eighth member, the President of the Council, was added to the Star Chamber, the juris-

diction of which was at the same time confirmed. At this time the court

performed a very necessary and valuable work in punishing powerful offenders who could not be

reached by the ordinary courts of law. It was found very useful by Cardinal Wolsey, and a little later

Sir Thomas Smith says its object was "to bridle such stout noblemen or gentlemen who would offer

wrong by force to any manner of men, and cannot be content to demand or defend the right by order

of the law."

In 1661 a committee of the House of Lords reported "that it was fit for the good of the nation that

there be a court of like nature to the Star Chamber". Congress in 1989 unanimously passed the WPA.

S.372 legislation would allow access to jury trials and would remove the exclusive jurisdiction of the

U.S. Court of Appeals. Application of Supreme Court Rule 4 At the opening of the United States Circuit Court in Boston on May 16, Judge SPRAGUE delivered a

charge to the Grand Jury, in which he defined the state of our laws with reference to the crime of pi-

racy. After citing provisions from the laws of 1790, 1820, 1825, 1846 and 1847, as to what constitutes

the general crime, with the different degrees of penalty, the Judge remarks that these enactments were



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founded upon the clause in the Constitution which gives Congress the power to define and punish pi-

racy. But the constitutional power to regulate commerce also affords a basis for additional penal en-

actments, covering all possible aggressions and depredations upon our commerce. The Judge then lays

down the following important principles, the bearing of which will be sufficiently evident in the pre-

sent crisis:

"These statutes being enacted pursuant to the Constitution are of paramount authority, and cannot be

invalidated or impaired by the action of any State or States, and every law, ordinance and constitution

made by them for that purpose, whatever its name or form, is wholly nugatory and can afford no legal

protection to those who may act under it. But suppose that a number of States undertake by resolution

to throw off the Government of the United States and erect themselves into an independent nation,

and assume in that character to issue commissions authorizing the capture of vessels of the United

States, will such commissions afford protection to those acting under them against the penal laws of

the United States? Cases have heretofore arisen where a portion of a foreign empire -- a colony -- has

undertaken to throw off the dominion of the mother country, and assumed the attitude and claimed the

rights of an independent nation, and in such cases it has been held that the relation which the United

States should hold to those who thus attempt and claim to institute a new Government, is a political

rather than a legal question; that, if those departments of our Government which have a right to give

the law, and which regulate our foreign intercourse and determine the relation in which we shall stand

to other nations, recognize such new and self-constituted Government as having the rights of a bellig-

erent in a war between them and their former rulers, and the United States hold a neutral position in

such war, then the judiciary, following the other departments, will to the same extent recognize the

new nation.

Executive Order 11988 requires federal agencies to avoid to the extent possible the long and short-

term adverse impacts associated with the occupancy and modification of flood plains and to avoid di-

rect and indirect support of floodplain development wherever there is a practicable alternative. In ac-

complishing this objective, "each agency shall provide leadership and shall take action to reduce the

risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to re-



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store and preserve the natural and beneficial values served by flood plains in carrying out its responsi-

bilities" for the following actions: acquiring, managing, and disposing of federal lands and facilities;

providing federally-undertaken, financed, or assisted construction and improvements;

conducting federal activities and programs affecting land use, including but not limited to water and

related land resources planning, regulation, and licensing activities.

STRIKE THE CONSENT DECREE, VOID AND VACATE, REMISSION, REVERSION,

DETINUE SUR BAILMENT. QUANTUM DAMNIFICATUS REMEDY DEMANDED

CONDEMNATION OF THE INTERLAKES MANAGEMENT AREA, ADVERSE CLAIMS

All premises having been duly considered, Relator now moves this honorable Court, on behalf of the

United States of America State of California as private attorneys general and Auditor-Inspector General:

WRIT OF QUO MINUS - QUANTUM DAMNIFICATUS QUARE IMPEDIT

The name of a writ directed by the king to the sheriff, by which he is required to command certain

persons by name to permit him, the king, to present a fit person to a certain church, which is void, and

which belongs to his gift, and of which the said defendants hinder the king, as it is said, and unless,

etc. then to summon, etc. the defendants so that they be and appear, etc.

Congress has the right to make any law that is ‘necessary and proper’ for the execution of its enumer-

ated powers (Art. I, Sec. 8, Cl. 18). Signature:________________________________ in loco parentis

/s/ John F. Hutchens, parens patriae; Tenant in-Chief; Warden of the Arboretum, Gales & Stannaries

I, John F. Hutchens, hereby state that the same is true of my own knowledge, except as to matters which are

herein stated on my own information or belief, and as t those matters, I believe them to be true.

Date: October 28, 2010_ Signature:______ _________________________ parens, parens, parens.

Verified affidavit: /s/ John F. Hutchens, Chancellor & High Warden, Palatine & General Commissioner

Grantees Agent for Mr. T.W. Arman, expert, Mormaer & Special Deputy Levying Officer of Record.

ENVIRONMENTAL COMMAND OFFICER - PRIVATE INSPECTOR GENERAL -MINISTER

FACILITY COMPLIANCE AUDITOR, EXCHEQUER, D.A.D. OF IRON MOUNTAIN MINE,

HUMMINGBIRD INSTITUTE – IRON MOUNTAIN HAZARD & REMEDIATION DIRECTOR

TENANT-IN-CHIEF OPERATING OFFICER / CHANCELLOR – FREEMINERS’ UNIVERSITY

CURATOR OF THE ARMAN CONSERVATORY / JOINT VENTURER – ad hoc & ad litem.


QUO AVARRANTO ABSOLUTE SOVEREIGN MANDAMUS 1

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John F. Hutchens, sui generis, expert Curator; Chancellor ad hoc & ad litem P.O. Box 182, Canyon, Ca. 94516 925-878-9167 [email protected] Two Miners and Three Minors and 8000 acres of land - Owner/Operator, Grantee & Agent & Factor. writ of quantum damnificatus quare impedit INTERVENTION IN THE UNITED STATES OF AMERICA





v. JOHN F. HUTCHENS




v. STEPHEN B. LOPEZ


v CH2MHILL




&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&










QUO AVARRANTO ABSOLUTE SOVEREIGN MANDAMUS 2

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INTERVENTION BY RIGHT, COMMISSION OF SPECIAL SARGEANT AUDITOR GENERAL

qui tam pro domino rege quam optimum credula postero, amicus optimus, Deo, patriae, tibi.

BRIEF

Background: Petitioner is a citizen of California, a father and a miner, with expertise in construction,

landscaping, horticulture, fertilizer, minerals, etc. Petitioner is in a joint venture with Mr T.W. Arman,

owner of Iron Mountain Mine, the largest mine in California. Iron Mountain has been on maintenance

since 1962. T.W. Arman purchased Iron Mountain Mine in Dec. 1976. Placed on NPL in 1983, super-

fund litigation began in 1991. Petitioner requires innocent landowner determination prior to execution

of a lease within the 2744 acres of Mr. T.W. Arman’s Iron Mountain Mine property or acquisition of

any properties within the 8000 acre superfund site, and to secure all vested and accrued existing

rights, privileges, and immunities of agricultural college patent, title to apex lode, discoveries, and

exercise of contractual obligations pursuant to the joint venture and the complete development of the

Iron Mountain Mine property and superfund site delisting work takeover and residency at the mine.

Petitioner in loco parentis prays also to further secure the same to my heirs and assigns, forever.

WRIT OF QUANTUM DAMNIFICATUS QUARE IMPEDIT

The Chancellor has the right to make all regulations that are necessary and proper for the execution of

his office and to carry on and conduct the mining businesses. Signature












TO THE SUPREME COURT OF THE UNITED STATES Writ of quo minus PETITION FOR EMERGENCY REVIEW

Writ of certiorari, Civil No. 2:91-cv-00768- Circuit No. 09-70047 11/1/2010 1

DECLARATIONS OF THE WARDEN FARMER/DEBTOR/STATESMAN/DAD/DISASTER ASSISTANCE DIRECTOR In Re: TWO MINERS & 360, 2744, 4400, 8000, 52,000, 103 million ACRES of LAND PEOPLE & STATE, EX REL. John F. Hutchens & T.W. Arman, and on behalf of Iron Mountain Mines, Inc. et al, and on behalf of all classes. (Two miners and 8000 acres of land v. United States) (Real Parties in Interest.) Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY-DOJ et al Usurpers, temporary interim receivers, false claimants, trespassers Respondents, Civil No. 2:91-cv-00768- Circuit No. 09-70047 On Petition for Intervention, Supersedeas, Qui Tam, Ejection, Wrongful Taking,

writ of certiorari - ABOLISH EPA-CERCLA-SUPERFUND:


Is, or is not, the act contrary to the provisions of the fifth amendment to the Constitution of the United States?

Does, or does not, the act, directly or indirectly, deprive any person of property without due process of law?

Is the State deprived by the Act of any right guaranteed to it in the Constitution of the United States, or therein implied?

"If the purpose of this statute was to divest the title of the owner of land in this way, It is unconstitutional. . . . It would be a proceeding which condemns without hearing, proceeds without Inquiry, and renders judgment without trial. It would not be due process of law" Alexander v. Gordon, 101 Fed. 91, 98, 41 CCA 228

The sole test of adverse holding under the statute is whether the true owner is actually disseized for the limitation period. "Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith . . . satisfies the calls of the statute. Such adverse possession of part of a tract under color of title, with Intent to claim the whole, in legal effect extends to the boundaries of the tract." Ovier v. Morrison, 142 Wis. 243, 247, 125 NW 449 (per Marshall, J.).

PETITION FOR EMERGENCY REVIEW


FACILITY COMPLIANCE AUDIT

With petitions to relocate & survey the Lode Mining Patents and the Agricultural College Patent of Mr. T.W. Arman.

[$ 482] P. Property in Custodia Legis. Property in custodia legis cannot be acquired by adverse possession. 69

EMERGENCY PLANNING, COMMUNITY RIGHT-TO-KNOW, POLLUTION PREVENTION

"U.S. Marshall McKeough explained the object of the meeting in a few pertinent remarks. He said that Mr. Hutchens told him on yesterday that unless they give up the water in the creek aforesaid, that he, Hutchens, would take a body of men and take the water by force of arms and hold the same until he and his men were whipped off the ground.

His party as above mentioned claim right of possession of the water, and are suing for Breach of Patent, False Claims, and Wrongful Taking by force.

In this dilemma Mr. Arman calls upon all his fellow-miners and countrymen to assist him in defending his rights, agreeable to the old miners' laws.

They said that this was a serious affair, they are willing to defend the old established miners' laws and the right."

"Pursuant to adjournment meeting met at 1 o'clock, were called to order by the tenant-in-chief, Mr. Hutchens. Committee reported as follows, having thoroughly investigated the laws and customs of the miners of Iron Mountain.:

We fully concur in the opinion that Mr. Arman is fully entitled to all the water in Slickrock Creek, Boulder Creek, Spring Creek, and Flat Creek, except four torn-heads each, which is allowed for the beds of the streams ; also that the burning of his forest, and the destruction of his dam and other property and the taking of his water from his race by force of arms are malicious acts, and should not be submitted to by those who are in favor of law and order. "On motion, the report was received and the committee discharged. "On motion it was 'Resolved, That we assist Mr. Arman in turning the water



into his race and that we sustain him to the last extremity in keeping it in the race.' "On motion, the meeting then adjourned for the purpose of carrying this resolution into effect."

Whether the law is in force at any given time is for the jury. Harvey vs. Ryan, 42 Cal. 626.

SPECIAL DEPUTY SERGEANT INSPECTOR GENERAL

The United States certainly has an interest in protecting the thousands of citizens in the United States of this class action from unconscionable environmental laws violating constitutional protections, fundamental rights, private property rights and other civil rights retained by the people, but the United States California attorneys are moot. Because of § 3729. False claims, with qui tam and 811, 1085, and 1107 & 1160 Code of Civil Procedure, and the likelihood that this matter could go on indefinitely, the Court should dismiss this case. The petitioner has further demonstrated a willingness to serve in a capacity consistent with an office sufficient to warrant the creation quo Warranto of such office and agency.

NOTICE: IMPOSITION OF PROPRIETARY CONTROL BY THE RESIDENT DEPUTY FIRE MARSHALL - FOREST WARDEN - CHANCELLOR OF THE GALES & STANNARIES - OCTOBER 23

ENVIRONMENTAL COMMAND OFFICER - PRIVATE INSPECTOR

DISASTER ASSISTANCE DIRECTORATE

The circuit court erred in not analyzing U.S. and California law as to whether the EPA actions are both procedurally and substantively unfair and unconscionable. You generally examine the first and second factors together. See Bauman, 557 F.2d at 654 (the second factor “is closely related to the first”). Inc., 409 F. Supp. 2d 1196, 1201 (C.D. Cal. 2006), Differing court interpretations of a statute "is evidence that the statute is ambiguous and unclear." U.S. v. Iron Mountain Mines, Inc., 812 F. Supp. 1528, 1557 (E.D. Cal. 1993).



False Claims to obtain a DETERMINATION OF PROBABLE CAUSE under Section 107(1) of CERCLA, 42 U.S.C. §9607 (1); CERCLA lien provisions; and under CERCLA Due Process Requirements. False Claims of Steven W. Anderson, Regional Judicial Officer May 4, 2000) False Claims of James Pedri, Rick Sugarek, Kathleen Salyer, Keith Takata. * * * Because all five Bauman factors favor relief, and none militates against it, you should conclude that the balance of factors favors issuing all the writs. The district court’s consent decree should be stayed by rule 62(g)(h), and the intervention should be granted with; CREATION OF THE OFFICE OF THE WARDEN OF THE ARBORETUM;



The State is deprived by the Act of right guaranteed to it in the Constitution of the United States, or therein implied.

ABOLISH EPA-CERCLA-SUPERFUND: UNCONSTITUTIONAL LAW

Declared under penalty of perjury under the laws of the State of California.

Date:_October 22, 2010_ Signature: __________________________

John F. Hutchens, Warden

VERIFICATION AFFIDAVIT I, John F. Hutchens, hereby state that the same is true of my own knowledge, except as to matters which are herein stated on my own information or belief, and as to those matters, I believe them to be true. Affirmed this day. Date:_ October 22, 2010_ Signature: _____________________________


TO THE SUPREME COURT OF THE UNITED STATES Writ of quo minus PETITION FOR EMERGENCY REVIEW

Writ of eftrepement, Civil No. 2:91-cv-00768- Circuit No. 09-70047-&c. 11/1/2010 1

DECLARATIONS OF THE HIGH WARDEN FARMER/DEBTOR/STATESMAN/DAD/DISASTER ASSISTANCE DIRECTOR In Re: TWO MINERS & 360, 2744, 4400, 8000, 52,000, 103 million ACRES of LAND PEOPLE & STATE, EX REL. John F. Hutchens & T.W. Arman, and on behalf of Iron Mountain Mines, Inc. et al, and on behalf of all classes. (Two miners and 8000 acres of land v. United States) (Real Parties in Interest.) Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY-DOJ et al Usurpers, temporary interim receivers, false claimants, trespassers Respondents, Civil No. 2:91-cv-00768- Circuit No. 09-70047-&c. On Petition for Intervention, Supersedeas, Qui Tam, Ejection, Wrongful Taking,

writ of eftrepement - QUARE OBSTRUXIT- quinlus exactus; ABOLISH EPA-CERCLA-SUPERFUND: MENDEZ @ QUIETE CLAMARE

Is, or is not, the act contrary to the provisions of the fifth amendment to the Constitution of the United States?

Does, or does not, the act, directly or indirectly, deprive any person of property without due process of law?

Is the State deprived by the Act of any right guaranteed to it in the Constitution of the United States, or therein implied?

"If the purpose of this statute was to divest the title of the owner of land in this way, It is unconstitutional. . . . It would be a proceeding which condemns without hearing, proceeds without Inquiry, and renders judgment without trial. It would not be due process of law" Alexander v. Gordon, 101 Fed. 91, 98, 41 CCA 228

The sole test of adverse holding under the statute is whether the true owner is actually disseized for the limitation period. "Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith . . . satisfies the calls of the statute. Such adverse possession of part of a tract under color of title, with Intent to claim the whole, in legal effect extends to the boundaries of the tract." Ovier v. Morrison, 142 Wis. 243, 247, 125 NW 449 (per Marshall, J.).



FACILITY COMPLIANCE AUDIT

With petitions to relocate & survey the Lode Mining Patents and the Agricultural College Patent of Mr. T.W. Arman.

[$ 482] P. Property in Custodia Legis. Property in custodia legis cannot be acquired by adverse possession. 69

EMERGENCY PLANNING, COMMUNITY RIGHT-TO-KNOW, POLLUTION PREVENTION- PRESIDENTS COUNCIL ON CAPITALIST PRINCIPALS

ANTITRUST - PIRACY - EXTORTION - MALICE - ABUSE - ERRORS OF IMPUNITY & MISCARRIAGE OF JUSTICE - RELIGION - COERCIVE MONOPOLY = SLAVERY

Certain persons may find pledges de prosequendo In An "to my Chancery, as officers of the Court and servants of the King, and who poor men, of which mention shall be in the writ, Et nisi &c. predict A. fecerit te securum de clamore suo prosequendo per g" thereby fidem suam quia pauper est tune summoneas &c. Et hoc conitit, cessum erit ex mandato cancellarii. Ibid, cites the Register 228. Ouii tind ' pledges de prosequendo, as well as a stranger that sues an attorney ; and for default thereof a judgment in debt was reversed) notwithstanding divers precedents were produced that an attorney need _ " not, because he is supposed always present in Court, and that the words Si euerens L 395 J fecerit te securum tec. are wanting in the attachment of privilege. But divers precedents were that pledges had been found. D. 188. pi. 53. Pafch. u Eliz. Flotemanv. Bygot Cro. C 31, Mich. 3 Car. C. B. S. P. Wolfe r. Hole. ¦ Hurt. 91. S. C. Her. 59.

[1. T N a writ of eftrepement to put the party to answer to an estrepement done by him between judgment and execution, he ought to find pledges. 22 E. 3. a. b.J

[2. Mirror of Justices, sol. 5. cap. s. 3. It was ordained that no action was receivable in judgment if he had not proof Foi. 159. present of witnesses or of other thing, nor that any should be compelled to answer to a writ, nor to come to the action in the Court of the King before Judge, Commissary, before the avower found surety of the damages, and to restore the penpences if he failed in his plaint, except recognizances of f four + Orig. pieces, assizes, certifications of assizes, attaints, redisseisins, and other cafes, which are only as offices of the King. To which ^Orig.anifi ordinance King H. I. made this mitigation in favour of poor quedel plaintiffs, that such as had not sufficient surety present should promise and swear to make satisfaction to their power according to a reasonable taxation. Vide ibidem sol. 21. cap. 2.] serement.)



[3. In a writ of reeordare facias loquelain pledges ought to be found, tho' the plaint in the inferiour Court be only returned, and pledges found there before. Tr. 15 Car. B. R. between Grojfe and Boscaiven. Per Curiam resolved.]

9. In error on a judgment, the error assigned was, that the plaintiff in the first action brought a bill in Banco upon his privi found no pledges in his first declaration, but found them only in his second declaration. Coke and Doderidge agreed, that if no pledges had been enter'd it had been error. Roll. R. 205. Trin. 13 Jac. B. R. Havert v Gibbons.

10. In error brought in B. R. upon a judgment in C. B. in ravishment of ward it was mov'd, that neither upon the return of the original writ before the sheriff, nor after in Court, any pledges were returned; it was agreed by the whole Court that at the common hw it was clearly error. And by three Justices, contra Haughton J. this is not aided by the body of the statute of 18 Eliz. Altho' it be within the words in the body of the act, yet it is clearly excepted by the proviso ; for this action is founded upon a penal law, which the proviso excepts clearly out of the statute. And for this cause judgment was reversed, Cro. Jac. 413. Hill. 14 Jac. B. R. Dr Hussey v. More. The sheriff 11. In replevin, taking money instead of pledges to answer the Justice of Peace may not take money to lie in depolito for the security of the peace, and money shall be forfeited to the King if he doth not keep the Peace not because the party is interested to cattle; it is have the benefit of the pledges by a feire facias, if he recover; as no remedy to have the money from the officer his purse, if he should have judgment to recover. Peribein Cro. Car. 446. Hill. 11 Car. B. R. Mayser v. Grey, Mayor of J. Co-nb. Beverley. ut. M ch. ' jW.dM. B. R. Lane ». Foulk.

12. Scirt facias lies against pledges in replevin after elongavit return'd; and pledges to be found both in a writ and a plaint by W. 2 cap 2. See Cumb. I. Mich, i Jac. 2. B. R. Dorrington v. Edwin.

NOTICE: IMPOSITION OF PROPRIETARY CONTROL BY THE RESIDENT DEPUTY FIRE MARSHALL - FOREST WARDEN - CHANCELLOR OF THE GALES & STANNARIES - OCTOBER 2010

ENVIRONMENTAL COMMAND OFFICER - PRIVATE INSPECTOR

DISASTER ASSISTANCE DIRECTORATE ORDER FOR INSPECTION

CHANCELLOR OF THE ARMAN INSTITUTE-HUMMINGBIRD UNIVERSITY



Writ of eftrepement, feire fascias - insurance reeordare facias loquelain

43 Eliz. N acts, That it shall be lawful for the Lord Chancellor to award under the Great Seal one standing commission.

CREATION OF THE OFFICE OF THE WARDEN OF THE ARBORETUM;

Grantee by fine of a reversion or remainder, to enforce distrain of the tenant for life.



The State is deprived by the Act of right guaranteed to it in the Constitution of the United States, or therein implied.


ABOLISH EPA – CERCLA - SUPERFUND UNCONSTITUTIONAL LAW- EMANCIPATE T.W. ARMAN

Petition to the Congress of the United States of America for the emancipation of T.W. Arman, which entitles him to all the rights and privileges of a free person. Declared under penalty of perjury under the laws of the state of California: I promise and swear to make satisfaction according to a reasonable taxation

Date: October 30, 2010_ Signature:__________________________

PLEDGES; Per Curiam resolved. John F. Hutchens, Warden

VERIFICATION AFFIDAVIT I, John F. Hutchens, hereby state that the same is true of my own knowledge, except as to matters which are herein stated on my own information or belief, and as to those matters, I believe them to be true. Affirmed this day. Date:_ October 30, 2010_ Signature:_____________________________


JOINT VENTURER in Intervention. Writ of Right, Writ of Possession, POSSE: No. 2:91-cv-00768-JAM-JFM

PRIVILEGES INCIDENTAL AND PEREMPTORY ABSOLUTE SOVEREIGN MANDAMUS 1

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John F. Hutchens, sui generis, expert Curator; Chancellor ad hoc & ad litem P.O. Box 182, Canyon, Ca. 94516 925-878-9167 [email protected] Two Miners and Three Minors and 8000 acres of land - Owner/Operator, Grantee & Agent & Factor. writ of privilege, immunity, and remainder INTERVENTION IN THE UNITED STATES OF AMERICA





v. JOHN F. HUTCHENS




v. STEPHEN B. LOPEZ


v CH2MHILL




&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&











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INTERVENTION BY RIGHT, COMMISSION OF SPECIAL PRIVATE INSPECTOR GENERAL

764. Where a remainder in fee is limited upon any estate, which would by the common law be ad-

judged a fee tail, such remainder is valid as a contingent limitation upon a fee, and vests in possession

on the death of the first taker, without issue living at the time of his death.

768. A reversion is the residue of an estate left by operation of law in the grantor or his successors, or

in the successors of a testator, commencing in possession on the determination of a particular estate

granted or devised.

780. When a remainder on an estate for life or for years is not limited on a contingency defeating or

avoiding such precedent estate, it is to be deemed intended to take effect only on the death of the

first taker, or the expiration, by lapse of time, of such term of years.

781. A general or special power of appointment does not prevent the vesting of a future estate limited

to take effect in case such power is not executed.

782. (a) Any provision in any deed of real property in California, whether executed before or after the

effective date of this section, that purports to restrict the right of any persons to sell, lease, rent, use or

occupy the property to persons having any characteristic listed in subdivision (a) or (d) of Section

12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision

(m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government

Code, by providing for payment of a penalty, forfeiture, reverter, or otherwise, is void.

784. "Restriction," when used in a statute that incorporates this section by reference, means a limita-

tion on, or provision affecting, the use of real property in a deed, declaration, or other instrument,

whether in the form of a covenant, equitable servitude, condition subsequent, negative easement, or

other form of restriction.

707. The time when the enjoyment of property is to begin or end may be determined by computation, or

be made to depend on events. In the latter case, the enjoyment is said to be upon condition.

708. Conditions are precedent or subsequent. The former fix the beginning, the latter the ending, of the right.

709. If a condition precedent requires the performance of an act wrong of itself, the instrument con-

taining it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of

itself, but otherwise unlawful, the instrument takes effect and the condition is void.



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WATER RIGHTS

1414. As between appropriators, the one first in time is the first in right.

1530. Novation is the substitution of a new obligation for an existing one.

1531. Novation is made:

1. By the substitution of a new obligation between the same parties, with intent to extinguish the old

obligation;

2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or,

3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the

latter to the former.

1532. Novation is made by contract, and is subject to all the rules concerning contracts in general.

1541. An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a

new consideration, or in writing, with or without new consideration.

1542. A general release does not extend to claims which the creditor does not know or suspect to exist

in his or her favor at the time of executing the release, which if known by him or her must have mate-

rially affected his or her settlement with the debtor.

Congress has the right to make any law that is ‘necessary and proper’ for the execution of its enumer-

ated powers (Art. I, Sec. 8, Cl. 18). Signature ________________________________ in loco parentis













QUO AVARRANTO, WRIT QUO WARRANTO ABSOLUTE SOVEREIGN MANDAMUS 1

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John F. Hutchens, sui generis, expert Curator; Chancellor ad hoc & ad litem P.O. Box 182, Canyon, Ca. 94516 925-878-9167 [email protected] Two Miners and Three Minors and 8000 acres of land - Owner/Operator, Grantee & Agent & Factor. Writ of Praemunire, suit for a monopoly, praemunire by 21 Jac. 1. c. 3. § 4.

INTERVENTION IN THE UNITED STATES OF AMERICA PREROGATIVE IN THE NORTHERN DISTRICT OF CALIFORNIA MR. JOHN F. HUTCHENS, MINER ad finemFARMER/ DEBTOR/ STATESMAN/ DAD/DISASTER ASSISTANCE DIRECTOR JOINT VENTURER, INSPECTOR, curator In Re: IRON MOUNTAIN MINE et al on behalf of all similarly situated, Ex rel: T.W. Arman & John F. Hutchens, on behalf of all classes CAFA certification

v. UNITED STATES EPA–DOJ-USDA-DOI-DOE



v. JOHN F. HUTCHENS




v. STEPHEN B. LOPEZ


v CH2MHILL




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Judex Curiae Prcerogalivee A person, being seised in fee of lands, was indicted for a praemunire upon 13 Eliz. c. 2 ; but before conviction he made an entail of his lands, and it was adjudged, that the attainder should relate to the time of the offence, and that was before he entailed the lands, and not the time of the judgment, which was afterwards; and the freehold being in him at the time of the at-tainder, shall not be divested without an inquisition under the great seal. Cro. Car. 123. 172. In all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be suf-ficient, and if the same shall be denied, all the matters in the act mentioned and provided, applicable to the case, shall be admissible in evidence to sus-tain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings wherein before the act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for such of the periods mentioned in the act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done ; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter therein-before mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of en-joyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.

PROHIBITION OF ALIEN JURISDICTION Eliminating in general the influence of foreign powers, especially creditors



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The penalties which were attached to the offence under this statute involved the loss of all civil rights, forfeiture of lands, goods and chattels, and impris-onment during the royal pleasure. "that the right of recovering the presentments to churches, prebends, and other benefices . . . belongeth only to the king’s court of the old right of his crown, used and approved in the time of all his progenitors kings of Eng-land," proceeds to condemn the practice of papal translation, and after re-hearsing the promise of the three estates of the realm to stand with the king in all cases touching his crown and his regality, enacts "that if any purchase or pursue, or cause to be purchased or pursued in the court of Rome, or else-where, any such translations, processes, and sentences of excommunications, bulls, instruments or any other things whatsoever ... he and his notaries, abettors and counsellors" shall be put out of the king's protection, and their lands escheat. In England the Statute of Praemunire was repealed by Criminal Law Act 1967 (section 13 and Schedule 4, Part 1), thereby opening up for appeals from the British subject to courts of authority in the European Union and the Roman Curia. Today, all appeals to the European Union ranging from Human Rights to Regulatory actions would not have been possible without the repeal of the Statute. Eventually it was decided that there was no legal obstacle to establishing formal diplomatic relations. Every motion hitherto has been supposed to have some relation to the trial of a cause: there are some few entirely independent of it; as a motion for a prohibition; applications for summary relief, under various statutes, relat-ing to articles of clerks; to attornies; insolvent debtors; and others of that stamp. See Motion in Court.



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Part of the visible practice of the court also arises from cases directed out of chancery ; special verdicts and writs of error; all of which are argued at the bar, and determined by the judges. Until recently, the practice of the courts of common law, differed in many respects, each court adhering to the course that had been pursued, and to the decisions which had been made by its own judges ; but, with a view to render the practice of all the courts uniform, the common law judges have, by various statutes, been invested with the power of making and promulgat-ing general rules, applicable to all the courts alike. Several series of rules have accordingly been issued; and, so far as they extend, the practice of the courts is assimilated; but there are still many proceedings untouched by these rules, in which each court follows its former mode of procedure. The practice of courts of equity may be deduced in a manner similar to the above, by attending to the several stages, from the filing of the bill to the execution of the decree. The crown business, or criminal practice, of which the Court of King's Bench has exclusive jurisdiction, does not admit of the application of the same idea: much the greatest part of it is independent of any solemn trial; and the trials themselves are too simple to endure much interruption, or branch out into many points of practice. This crown practice may be divided into such matters as originally commence in that court, and such as are removed into it from other inferior jurisdictions. Of both which kinds, taken together, are motions for an habeas corpus; mandamus (though this, and the motion for a quo warranto, in cases relating to corporations, partake of a civil as well as a criminal nature); to exhibit articles of the peace; motions relating to the discharge of recognizances; to remove indict-ments, orders of sessions, convictions, made by justices, &c. from their common ordinary course of proceeding, by writ of certiorari, into this court, on some foundation of complaint against them. The visible practice, that oc-



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casions this removal, and that arises from it, may be resolved into these few motions, very simple in their kind, though infinitely diversified as to their objects, viz. the general motion to remove the indictment, order or convic-tion by certiorari; motion to quash the indictment, &c. when it is removed. In the case of an indictment removed hither on a demurrer, it is set down to be argued; or motion is made to quash it before trial; or motion in arrest of judgment; or motion for judgment after the trial. But the most extensive jurisdiction is involved in matters of original cogni-zance, whether it regards indictments or informations ; or such matters as are entirely independent of either, or any solemn trial; such as begin and end on motions. There is little or no difference between an indictment commenced in this court, or removed from another jurisdiction, as to motions concerning them. As to informations, though altogether the creature of this court, they admit but of three motions; the application to the court to grant it: when granted, and tried, a casual motion in arrest of judgment, on grounds arising from the record itself: or, where the charge in the information and the verdict are both incontestible, the motion for judgment. To recapitulate all in a few words:—Practice in general, it appears, is either in civil or crown causes. In civil causes, it is either independent of a trial, or relative to it: if relative to it, it arises from something applied for either be-fore or after a trial. In crown causes, the only distinction made was, either as it concerned the original jurisdiction of the court, or such as is exercised, as it were, on appeal. " And unless (concludes the writer, from whom the foregoing sketch has been extracted and abridged,) I was to read over to you a hundred (he might have added or more) rules of court, and the several cases and books on this subject, (which, by the bye, I would not wish any enemy I have to do,) I cannot undertake to be more explicit on this subject."



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Prjeceptories, praeceptoria.] A kind of benefices, having their name from be-ing possessed by the more eminent Templars, whom the chief master by his authority created and called Prceceptores Templi. And of these praecepto-ries there are recorded sixteen, as belonging to the Templars in England, viz. Cressing Temple, BalshaT, Shingay, Newland, Yevely, Witham, Tem-plebruere, Willington, Rotheley, Ovenington, Temple Combe, Trebigh, Rib-stane, Mount St. John, Temple Nusum, and Temple Hurst. Man. Anal. ii. 543. But some authors say, these places were cells only, subordinate to their principal mansion in the Temple in London. See Stat. Antiq. 32 Hen. 8. c. 24. PRECIPE, command.'] See Original. PRAECIPE IN CAPITE. The writ of right for the king's immediate tenants in capite, when they were deforced of lands or tenements. 3 Conim. c. 10. See Writ of Right. PRAECIPE, QUOD REDDAT, Command that he render.] See Fine of Lands, Recovery. PRECIPITIUM. A punishment inflicted on criminals, by casting them from some high place. Malms, lib. 5. p. 155. 'PR/EFECTUS VILL/E. Is the same as propositus villa, i. e. the mayor of a town. Leg. Ed. Confess, c. 28. PREFINE. That fine which, on suing out the writ of covenant on levying fines, was paid before the fine was passed. Sec Fine of Lands. PRAEMUNIRE, Corrupted from, or apparently synonymous with, precmoncri, " to be fore-warned ;" and therefore, according to the proverb, fore-armed. See Da Cange in ».] The writ so culled, or the offence whereon the writ is granted; the one may be understood by the other. The offence is of a nature highly criminal, thougli not capital, and more immediately affecting the king or his govern-ment. It is named, from the words of the writ, preparatory to the prosecu-tion thereof, " Prcemunire facias A. B.—Cause A. B. to be forewarned— that



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he appear before us to answer the contempt wherewith he stands charged;" which contempt is particularly recited in the preamble to the writ. It took its original from the exorbitant power claim pope; and was originally ranked as an offence immediately against the king; because it consisted in introduc-ing a foreign power into this land, and creating imperium in imperio, by paying that obedience to papal process, which constitutionally belonged to the king alone, long before the Reformation in the reign of Henry VIII. See 4 Comm. c. 8. The church of Rome, under pretence of her supremacy, and the dignity of St. Peter's chair, took on her to bestow most of the ecclesiastical livings, of any worth in England, by mandates, before they were void; pretending therein great care to see the church provided of a successor before it needed. Whence these mandates or bulls were called gratia; expectativae or provi-sional, whereof see a learned discourse in Duarenus ae Benefteiis, lib. 3. c. 1. These provisions were so common, that at last it was necessary to re-strain them by the laws of the land. In the 35th year of Edward I. was made the first statute against papal pro-visions, 35 Edw. 1. st. 1; being, according to Coke, the foundation of all the subsequent statutes of praemunire. It recites, that the abbots, priors, and governors had, at their own pleasure, set divers impositions upon the mon-asteries and houses in their subjection; to remedy which, it was enacted, that in future religious persons should send nothing to their superiors be-yond the sea; and that no imposition whatever should be taxed by priors aliens. By 25 Edw. 3. st. 5. c. 22. it was enacted, that if any one purchased a provision of an abbey or priory, he should be out of the king's protection. And by 25 Edw. 3. st. 6. (c. 2.) ; 27 Edw. 3. st. 1. c. 1 ; 38 Edw. 3. st. 1. c. 4; and 2. c. 1, 2, 3, 4, it was enacted, that the court of Rome should not present or collate to any bishopric or living in England ; and that whoever disturbed



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any patron in the presentation to a living, by virtue of a papal provision, such person should pay fine and ransom to the king, at his will; and be im-prisoned till he renounced such provision. The same punishment was in-flicted on such as should cite the king, or any of his subjects, to answer in the court of Rome. By 8 Rich. 2. c. 3 ; 7 Rich. 2. c. 12. it was enacted, that no alien should be capable of letting his benefice to farm, in order to compel such as had crept in, at least to reside on their preferments; and that no alien should be capable of being presented to any ecclesiastical preferment, under the penalty of the statutes of provisors. By 12 Rich. 2. c. 15. all liege-men of the king, accepting of a living by any foreign provision, were put out of the king's protection, and the benefice made void; to which 13 Rich. 2 st. 2. c. 2. adds banishment and forfeiture of lands and goods; and by c. 3. of the same statute, it was enacted, that any person bringing over any citation or excommunication from beyond sea, on account of the execution of the forego-ing statutes of provisors, should be imprisoned, forfeit his lands and goods, and moreover suffer pain of life and member. In the writ for the execution of these statutes, the words praemunire facias being used to command a citation from the party, have denominated in common speech, not only the writ but the offence itself of maintaining the papal power, by the name of praemunire. The 16 Rich. 2. c. 5. which is the statute generally referred to by all subsequent statutes, is accordingly usu-ally called the statute of praemunire. It enacts, that whoever procures at Rome or elsewhere, any translations, processes, excommunications, bulls, instruments, or other things, which touch the king, against him, his crown and realm, and all persons aiding and assisting therein, shall be put out of the king's protection; their lands and goods forfeited to the king's use; and they shall be attached by their bodies to answer to the king and his council; or process of praemunire facias shall be made out against them as in other



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cases of provisors. By 2 Hen. 4. c. 3. all persons who accept any provision from the pope, to be exempt from canonical obedience to their proper ordi-nary, were also subjected to the penalties of praemunire. This is said to be the last ancient statute concerning tins offence till the Reformation. But by 2 Hen. 4. c. 4. whoever shall put in execution bulls purchased by those of the order of Cisteaux, to be discharged of tithes, shall incur the like penalty : they were also further restrained by 6 Hen. 4. c. 1 ; 7 Hen. 4. c. 8; 9 Hen. 4. c. 8; and 3 Hen. 5. c. 4; by which the statutes above mentioned are enforced and explained ; and by 23 Hen. 8. c. 2. § 22. whoever shall sue for or execute any licence, dispensation, or faculty from the see of Rome; and by 28 Hen. 8. c. 16. (by which all bulls, briefs, &c. obtained from Rome, are made void,) whoever shall use, allege, or plead the same in any court, unless they were confirmed by this statute, or afterwards by the king, shall incur the like penalty. Fide Reg. 54; 3 Inst. 127. The penalties of praemunire have been since applied to other offences, some of which bear more, some less, and some no relation to this original offence, as shall be hereafter noticed. Whenever it is said, that a person, by any act, incurs a praemunire, it is meant to express, that he thereby incurs the penalties which, by the differ-ent statutes above mentioned, are inflicted for the offences therein de-scribed. See 4 Comm. c. 8; 1 Inst. 391. in n. 2. Having said thus much generally, we may proceed further to consider the subject under the following heads: I. What Offences, besides those already specified, come under the Notion of a Praemunire. II. Of the Punishment in a Praemunire. I. At the time of the Reformation, the penalties of praemunire were ex-tended to more papal abuses than before; as the kingdom then entirely re-nounced the authority of the see of Rome, though not all the doctrines of the



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Roman church. And therefore, by the statutes 24 Hen. 8. c. 12; 25 Hen. 8. c. 19, 21. to appeal to Rome from any of the king's courts, which (though ille-gal before) had at times been connived at; to sue to Rome for any licence or dispensation, or to obey any process from thence, are made liable to the pains of praemunire. And, in order to restore to the king, in effect, the nomination of vacant bishoprics, and yet keep up the established forms, it is enacted by 25 Hen. 8. c. 20. that if the dean and chapter refuse to elect the person named by the king, or any archbishop or bishop to confirm or conse-crate him, they shall fall within the penalties of the statutes of praemunire. Exercising the jurisdiction of a suffragan, without the appointment of the bishop of the diocese, is also made a praemunire, by 26 Hen. 8. c. 14; which sets forth at large how suffragans are to be nominated, &c. See Bishops. Also by 5 Eliz. c. 1. to refuse the oath of supremacy will incur the pains of praemunire; and to defend the pope's jurisdiction in this realm, is a prae-munire for the first offence, and high treason for the second. Lastly, to con-tribute to the maintenance of a Jesuit's college, or any popish seminary whatever, beyond sea; or any person in the same; or to contribute to the maintenance of any Jesuit or popish priest in England, is by 27 Eliz. c. 2. made liable to the penalties of praemunire. Thus far the penalties of praemunire seem to have kept within the proper bounds of their original institution,—the depressing the power of the pope; but they being pains of no inconsiderable consequence, it has been thought fit to apply the same, as already hinted, to other heinous offences. Derogating from the king's common law courts, is said to have been an high offence at common law, and is made a praemunire by many ancient stat-utes; for, by 27 Ed. 3. c. 1. of Provisors, If any subject draw any out of the realm in plea, whereof the cognizance pertains to the king's court, or of things whereof judgments be given in the king's courts, or sue in any other



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court to defeat or impeach the judgments given in the king's courts, he shall be warned to appear, &c. in proper person, at a day, containing the space of two months; at which if he appear not, he and his proctors, &c. shall be put out of the king's protection, his lands and chattels forfeited,, his body im-prisoned, and ransomed at the king's will, &c. See also 16 Rich. 2. c. 5.. In the construction of these statutes it hath been held, that certain commis-sioners of sewers, for summoning one before them who had got a judgment at law,, and imprisoning him till he would release it, were guilty of a prae-munire. 2 Bulst. 299 ; 3 Inst. 125; Cro. Jac. 336. Also suits in the admiralty or ecclesiastical courts within the realm for mat-ters which, upon the face of the libel itself, appear to belong only to the cog-nizance of the temporal courts, are said to be within 16 Rich. 2. by force of the words, " or elsewhere." 1 Hamk. P. C. c. 19. § 14, 19. And it hath been formerly holden, that even suits in a court of equity, to re-lieve against a judgment at law, were within the danger of these statutes ; especially if they tended to controvert the very point determined at law, or to relieve in a matter relievable at law. 4 New. Abr. 140. By 1 & 2 P. Sf M. c. 8. § 40. to molest the possessors of abbey lands, granted by parliament to Henry VIII. and Edward VI. is a praemunire. So likewise is the offence of acting as a broker or agent in any usurious contract, where above 10 percent, interest is taken, by 13 Eliz. c. 8. To obtain any stay of proceedings^ other than by arrest of judgment or writ of error, in any suit for a monopoly, is likewise a praemunire by 21 Jac. 1. c. 3. § 4. To obtain an exclusive patent for the sole making or importation of gunpowder or arms, or to hinder others from importing them, is also a praemunire by the. 16 Car. 1. c. 21. On the abolition, by 12 Car. 2. c. 24. of purveyance, and the prerogative of preemption, or taking any victual, beasts, or goods for the king's use, at a stated price, without consent of the proprietor, the exertion



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of any such power for the future was declared to incur the penalties of praemunire. See Pourveyance. To assert, maliciously and advisedly, by speaking or writing, that both or either house of parliament have a legisla-tive authority without the king, is declared a praemunire by 13 Car. 2. st. 1. c. 1. So, to conspire to avoid the seizure or forfeiture, upon the importation of cattle, as mentioned in 20 Car. 2. c. 7. By the Habeas Corpus Act also, 31 Car. 2. c. 2. it is a praemunire, and incapable of the king's pardon, besides other heavy penalties, to send any subject of this realm a prisoner into parts beyond the seas. See Habeas Corpus. By 1 W. if M. st. I.e. 8. persons of eighteen years of age, refusing to take the new oaths of allegiance, (and formerly of supremacy, see Nonjurors, Oaths,} upon tender by the proper magistrate, are subject to the penalties of a praemunire; and, by 7 & 8 Wm. 3. c. 4. Serjeants, counsellors, proctors, attornies, and all officers of courts, practising without having taken the oaths of allegiance, (and formerly of supremacy, and subscribed the declaration against popery,) are guilty of a praemunire, whether the oaths be tendered or not. See Oaths. By 6 Ann. c. 7. to assert maliciously and directly, by preaching, teaching, or advised speaking, that the then pretended Prince of Wales, or any person other than according to the acts of settlement and union, hath any right to the throne of these kingdoms ; or that the king and parliament cannot make laws to limit the descent of the crown ; such preaching, teaching, or advised speak-ing, is a praemunire: as writing, printing, or publishing the same doctrines amount to high treason. By G Ann, c. 23. if the assembly of peers of Scot-land, convened to elect their sixteen representatives in the British parlia-ment, shall presume to treat of any other matter, save only the election, they incur the penalties of a praemunire. The 12 Geo 3.c. 11. subjects to the penalties of the statute of praemunire all such as knowingly and willingly



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solemnize, assist, or are present at, any forbidden marriage of such of the descendants of the body of King George II. as are by that act prohibited to contract matrimony without the consent of the crown. See King, Marriage. II. Tub punishment of this offence may be learned from the foregoing stat-utes, which are thus shortly summed up by Coke: " That from the convic-tion, the defendant shall be out of the king's protection, and his lands and tenements, goods and chattels, forfeited to the king; and that his body shall remain in prison at the king's pleasure ; 1 Inst. 129 ; or (as other authorities have it) during life;'' 1 Bulst. 199 : both which amount to the same thing; as the king, by his prerogative, may any time remit the whole, or any part of the punishment; 2 Bulst. 299 ; except in the case of transgressing the stat-ute of Habeas Corpus. These forfeitures, here inflicted, do not (by the way) bring this offence within the general definition of felony ; being inflicted by particular statutes, and not by the common law. But so odious, Sir Edw. Coke adds, was this offence of praemunire, that a man who was attainted of the same, might have been slain by any other man, without danger of law: because it was provided by 25 Edw. 3. st. (>. c. 22. that any man might do to him as to the king's enemy, and any man may lawfully kill an enemy. How-ever, the position itself, that it is at any time lawful to kill an enemy, is by no means tenable: it is only lawful by the law of nature and nations, to kill him in the heat of battle, or for necessary self-defence. And to obviate such savage and mistaken notions, the 5 Eliz. c. 1. provides, that it shall not be lawful to kill any person attainted in a praemunire; any law, statute, opin-ion, nor exposition of law to the contrary notwithstanding. But still such de-linquent, though protected, as a part of the public, from public wrongs, can bring no action for any private injury, how atrocious soever; being so far out of the protection of the law, that it will not guard his civil rights, nor rem-



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edy any grievance which he, as an individual, may suffer. 1 Inst. 130. And no man, knowing him to be guilty, can with safety give him comfort, aid, or relief. 1 Hawk. P. C. c. 19. See 4 Comm. c. 8. If the defendant be condemned on his default of not appearing, whether at the suit of the king or party, the same judgment shall be given as to the be-ing out of the king's protection and the forfeiture ; but instead of the clause, that the body shall remain in prison, there shall be awarded a capiaiur. Co. Litl. 129 6; 3 Inst. 125. 218. A statute, by appointing that an offender shall incur the penalty and danger mentioned in 16 Ric. 2. c. 5. does not confine the prosecution for the offence to the particular process thereby given. 1 Vent. 173. It is holden, that the statute of praemunire, which gives a general forfeiture of all the lands and tenements of the offender, extends not to lands in tail. Co. Litt. 130. It is said, the statute of praemunire doth not extend to the forfeiture of rents, annuities, fairs, &c. or any other hereditaments that are not within the word terrae. 3 Inst. 12G. This suit need not be by original in B. R.; for if defendant be in custodid Marcschalli, the suit may he against him by bill; and defendants cannot be sued in any other court when they are in custodid Mareschal'. And if a de-fendant come not at the day, &c. or if he appears and pleads, and the issue be found against him, or he demurs in law, &c. judgment shall be given, that he shall be out of protection, &c. 3 Inst. 124. If tenant in tail is attainted in a praemunire, he shall forfeit his lands only during life; and afterwards the issue in tail shall inherit. 11 Rip. 56. A person, being seised in fee of lands, was indicted for a praemunire upon 13 Eliz. c. 2 ; but before conviction he made an entail of his lands, and it was adjudged, that the attainder should relate to the time of the offence, and



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that was before he entailed the lands, and not the time of the judgment, which was afterwards ; and the freehold being in him at the time of the at-tainder, shall not be divested without an inquisition under the great seal. Cro. Car. 123. 172. It hath been adjudged, that a pardon of all misprisions, trespasses, offences, and contempts, will pardon a. prcemunire. Cro. Joe. 336 ; 2 Bulst. 299. The defendant in a prcemunire must regularly appear in person, whether he be a peer or commoner, unless he is dispensed with by some writ or grant for that purpose ; but in the case of Sir Anthony Mildmay, he was allowed to plead a pardon to a prcemunire by attorney ; but it has been thought, that there was some clause to this effect in the pardon. 3 Inst. 125 ; 1 Roll. Rep. 190 ; 2 Bulst. 290. On an indictment of a prcemunire, a peer of the realm shall not be tried by his peers. 12 Co. 92. On an information on the 6 Geo. I.e. 18. (now repealed) for setting up a bub-ble called the South Sea, it was determined that the court was not obliged by that act to give the whole judgment, as in case of & prcemunire, against a defendant, but only such parts of it as in their discretions they should think fit; and accordingly a fine of 51. was set on the party convicted, and judgment that he should remain in prison during the king's pleasure. 2 Ld. Raym. 361. Numerous as the statutes are which denounce the penalties of a prcemu-nire, prosecutions for this offence have been for some time unheard of in our courts. In the State Trials there is only one instance of such a prosecution, in which case the penalties of a prcemunire were inflicted upon some per-sons, for refusing to take the oath of allegiance in the reign of Charles the Second. 2 Harg. St. Tr. 463 ; 2 Deacon's Crim. Dig. 1053. PROPOSITUS ECCLESIO. A church reeve, or churchwarden ; see that title.



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PROPOSITUS VILLO. Sometimes is used for the constable of a town, or petit constable. Cromp. Jurisd. 205. Yet the same author, 194, seems to ap-ply it otherwise; for there quatuor homines prcepositi are those four men, who must appear for every town, before the justices of the forest in their cir-cuit. It is sometimes used for an head or chief officer of the king, in a town, manor, or village, or a reeve. See Reeve. Animalia et res inventce coram ipso (prceposito) et sacerdote ducenda erant. LL. Edw. Confessor, cap. 28. This prceposilus villce, in our old records, does not answer to our present consta-ble, or head-borough of a town; but was no more than the reeve, or bailiff* of the lord of the manor, sometimes called scrviens villce. By the laws of Henry I. the lord answered for the town where he was resi-dent; where he was not, his dapifer, or seneschal, if he were a baron : but if neither of them could be present, then prcepositus et quatuor de unaqudque villd, i. e. the reeve and four of the most substantial inhabitants were sum-moned. See Brady's Glossary to Introduction to English History, page ."7. in voc. Prcepositus. PRAYERS OF THE CHURCH. See Common Prayer. PREACHING. Every beneficed preacher, residing on his benefice, and hav-ing no lawful impediment, shall in his own cure, or some neighbouring church, preach one sermon every Sunday of the year: and if any beneficed person be not allowed to be a preacher, he shall procure sermons to be preached in his cure by licensed preachers; and every Sunday, whereon there shall not be a sermon, he or his curate is to read one of the homilies: no person, not examined and approved by the bishop, or not licensed to preach, shall expound the scripture, &c.; nor shall any be permitted to preach in any church, but such as appear to be authorised thereto, by show-ing their license; and churchwardens are to note in a book the names of all strange clergymen who preach in their parish; to which book every preacher



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is to subscribe his name, the day he preached, and the name of the bishop of whom he had licence to preach. Can. 44, 45. 49. If any person licensed to preach, refuses to conform to the ecclesiastical laws, after admonition, the licence of every such preacher shall be void: and if any parson preach doctrine contrary to the word of God, or the Articles of Religion, notice is to be given of it to the bishop by the churchwardens, &c. So likewise of matters of contention and impugning the doctrine of other preachers in the same church; in which case, the preacher is not to be suf-fered to preach, except he faithfully promise to forbear all such matter of contention in the church, until the bishop hath taken further order therein. Can. 53, 54. No minister shall preach or administer the sacrament in any private house, unless in times of necessity, as in case of sickness, &c. on pain of suspension for the first offence, and excommunication for the second; which last pun-ishment is also inflicted on such ministers as meet in private houses, to con-sult on any matter tending to impeach the doctrine of the church of Eng-land. Can. 71, &c. PREAMBLE, procemiuni, from the preposition prce, before, and ambulo, to walk.] The beginning of a statute is called the preamble; which is a key to the intent of the makers of the act, and the mischiefs which they would remedy by the same. See Statute. The preamble to an act reciting the existence of certain outrages, and mak-ing provision against them, is admissible evidence to prove an introductory averment in an information for a libel. 4 M. & S. 532. PRE-AUDIENCE. In the courts, is of considerable consequence ; the follow-ing short table of precedence, which usually obtains among counsel, is taken from 3 Comm. c. 3. p. 97. in n. I. The king's premier serjeant (so constituted by special patent.)



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. 2. The king's ancient serjeant, or the eldest among the king's Serjeants. 3. The king's advocate-general. 4. The king's attorney-general. 7 fi . , 5. 1 he king s solicitor-general, J 6. The king's Serjeants. 7. The king's counsel, with the queen's attorney and solicitor, and those who have patents of precedence. See Barrister. 8. Serjeants at law. 9. The recorder of London. 10. Advocates of the civil law. II. Barristers. By special order of the prince regent, 14th December, 1814, Nos. 4 and 5, now take precedency before Nos. 1 and 2. 6 Taunton, 424. In the Court of Exchequer, two barristers appointed by the lord chief baron, called the post-man and the tub-man, (from the places in which they sit,) have also a precedence in motions. See Motion in Court. PREBEND, prebenda.J The portion which every prebendary of a cathedral church receives, in right of his place, as one of the chapter of the dean, for his maintenance; as canonica portio is properly used for that share, which every canon receiveth yearly out of the common stock of the church. And prcebenda is a several benefice arising from some temporal land, or some church appropriated towards the maintenance of a clerk, or member of a col-legiate church ; and is commonly named of the place where the profit arises. Prcebenda, strictly taken, is that maintenance which daily prcebetur to an-other ; but now it signifies the profits belonging to the church, divided into those portions called prcebenda, and is a right of receiving the profits for the duty performed in the church sufficient for the support of the parson in that divine office where he resides. Decret. tit. De Prcebend.



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The spiritualty and temporalty make a prebend, but the spiritualty is the highest and most worthy: and a person is not a complete prebendary, to make any grant, &c. before installation and induction. Dyer, 221. Prebends are simple and dignitary. A simple prebend hath no more than the revenue for its support; but a pre-bend with dignity hath always a jurisdiction annexed; and for this reason the prebendary is styled a dignitary, and his jurisdiction is gained by pre-scription. Prebends are some of them donative; and some are in the gift of laymen; but in such case they must present the prebendary to the bishop, and the dean and chapter inducts him, and places him in a stall in the cathedral church, and then he is said to have locum in choro. At Westminster, the king col-lates by patent, and, by virtue thereof, the prebendary takes possession without institution or induction. 2 Rol. Abr. 356. As a prebend is a benefice without cure, &c. a prebend and a parochial bene-fice are not incompatible promotions; for one man may have both without any avoidance of the first: for though prebendaries are such as have no cure of souls, yet there is a sacred charge incumbent on them in those cathedrals where they are resident, and they are obliged to preach by the canons of the church; and it is not lawful for a prebendary to possess two prebends in one and the same collegiate church. Rol. Abr. 361. Prebendaries are said to have an estate in fee-simple in right of their churches, as well as bishops of their bishoprics, deans of their deaneries, &c. Corpus Prcebendce, is that which is received by a prebendary above the profits which are always for his daily maintenance. See further, tits. Chap-ter, Clergy, Dean.



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Prebenda and Probanda were also in old deeds used for provisions, provand or provender. Pro equo suo unum bushel avenarum pro praebenda capiendd. Coucher Book in Dutchy Office, i. 45. Cotvell. PREBENDARY, prebendarius.'] He who hath a prebend; so called, not a praebenda auxilium el consilium episcopo, 8fC. but from receiving the pre-bend: and if a manor be the body of a prebend, and is evicted by title para-mount, yet the prebend is not destroyed. 3 Rep. 75. There is a golden prebendary of Hereford, otherwise termed prebendarius episcopi, who is one of the twenty-eight minor prebendaries there, and has, ex officio, the first canon's place that falls : he was anciently confessarius of the cathedral church, and to the bishop, and had the offerings at the altar; whereby, in respect of the gold commonly given there, he had the name of golden prebendary. Blount. PRECARIiE. Days-works, which tenants of some manors were bound, by reason of their tenure, to do for their lord in harvest; and, in divers places, are still vulgarly called bind days, for biden-days, which, in the Saxon, dies precarias sonat. For bidden is to pray or intreat. This custom is plainly set forth in the great book of the Customs of the Monastery of Battel, tit. Ap-pelderham, fol. 60. Cornell. PRECEDENCE. The commonalty of the realm, like the nobility, are divided into several degrees; and as the lords, though different in rank, yet all of them are peers in respect of their nobility; so the commoners, though some are greatly superior to others, yet all are in law peers, in respect of their want of nobility. 2 Inst. 29. See 1 Comm. c. 12. The rules of precedence, in England, are reduced by Blackstone to the fol-lowing table: in which those marked * are entitled to the rank here allotted them, by 31 Hen. 8. c. 10.—those marked f, by 1 W. § M. c. 21.—those marked j|, by letters-patent 9, 10, and 14 Jac. 1. which see in Seld. Tit. of



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Bon. ii. 5. 46. and ii. 11. 3.—those marked %, by ancient usage and estab-lished custom; for which see (among others) Camden's Britannia, tit. Ordi-nes; Milks's Catalogue of Hon. edit. 1610; and Chamberlayne's Present State of England, b. 3. c. 3. Table Of Precedence. The King's children and grandchildren. brethren. uncles. nephews. Archbishop of Canterbury. Lord Chancellor or Keeper, if a Baron. Archbishop of York. Lord Treasurer. "i Lord President of the Council. > if Barons. Lord Privy Seal. J Lord Great Chamberlain. But see privates o stat. 1 Geo. 1. c. 3. Lord High Constable. Lord Marshal. Lord Admiral. Lord Steward of the Household. Lord Chamberlain of the Household. Dukes. Marquises. Duke's eldest sons. Earls. Marquises' eldest sons.



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Dukes' younger sons. Viscounts. Earls' eldest sons. Marquises' younger sons. Secretary of State, if a Bishop. Bishop of London. Durham. Winchester. Bishops. Secretary of State, if a Baron. Barons. Speaker of the House of Commons. Lords Commissioners of the Great Seal. Viscounts' eldest sons. Earls' younger sons. Barons' eldest sons. Knights of the Garter. Privy Councillors. Chancellor of the Exchequer. Chancellor of the Duchy. Chief Justice of the King's Bench. Master of the Rolls. Chief Justice of the Common Pleas. Chief Baron of the Exchequer. Judges, and Barons of the Coif. Knights Bannerets, Royal. Viscounts' younger sons. Barons' younger sons.



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Baronets. Knights Bannerets. Knights of the Bath.—[Enlarged in 1815, and distinguished as Knights Grand Crosses, and Knights Commanders.] Knights Bachelors. Baronets' eldest sons. Knights' eldest sons. Baronets' younger sons. Knights' younger sons. Colonels. Serjeants at Law. Doctors:—With whom, it is said, rank Barristers at Law; as to whose Prece-dence among each other, see Pre-audience. Esquires.—[Of whom Companions of the Bath rank first.] Gentlemen. Yeomen. Tradesmen. 1 Artificers. J Labourers. Married women and widows are entitled to the same rank among each other, as their husbands would respectively have borne between themselves; except such rank is merely professional or official;—and unmarried women to the same rank as their eldest brothers would bear among men, during the lives of their fathers. 3 Comm. c. 21. p. 405. in n. PRECEDENT CONDITIONS. See Condition, IV. PRECEDENTS. Authorities to follow in determinations in courts of justice. Precedents have always been greatly regarded by the usages of the law. The precedents of the courts are said to be the laws of the courts; and the court



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will not reverse a judgment, contrary to many precedents. 4 Rep. 93 ; Cro. Eliz. 65 ; 2 Lil. Abr. 344. But new precedents are not considerable; prece-dents without judicial decision on argument are of no moment; and an ex-trajudicial opinion given in or out of court, is no good precedent. Vaugh. 169, 382, 399, 429. It has been held that there can be no precedent in matters of equity, as eq-uity is universal truth; but, according to Lord Keeper Bridgman, precedents are necessary in equity to find out the reasons thereof for a guide ; and, be-sides the authority of those who made them, it is to be supposed they did it on great consideration, and it would be strange to set aside what has been the course for a long series of time. 1 Mod. .307. If a man doubt whether a case be equitable, or no, in prudence he will determine as the precedents have been ; especially if made by men of good authority and learning. Ibid. See Chancery, Equity. Lord C. Talbot said, he thought it much better to stick to the known general rules, than to follow any one particular precedent, which may be founded on reasons unknown to us. Such a proceeding would confound all property. Cases m Chan, in Talbot's Time, 26, 27, 196. PRECE PARTIUM. When a suit is continued by the prayer, assent, or agreement of both parties. See 13 Ed. 1. st. I. c. 27. PRECEPT, preeceptum."] Is diversly taken in law; as sometimes for a com-mand in writing by a justice of peace, or other officer, for bringing a person or records before him ; of which there are many examples in the table of the Register Judicial. And in this sense it seems to be borrowed from the cus-toms of Lombardy, where preeceptum signifieth scriptura vel instrumen-tum. Hotom. in verb. Feudal, fy lib. 3. Comment a. in Libros Feudor' in Prarfatione. Sometimes it is taken for the provocation, whereby one man in-cites another to commit a felony, as theft, murder, &c. Staundf. PI. Cor. 105



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; Bracton, lib. 3. tract. 2. cap. 9, calls it preeceptum or mandatum. Whence we may observe three divisions of offending in murder, preeceptum, fortia, consilium ; preeceptum being the instigation used beforehand ; fortia the assistance in the fact, as to help to bind the party murdered or robbed; con-silium, advice either before or in the fact. The civilians use mandatum in this case. Cornell. PREMISES, Ok PREMISSES. That part in the beginning of a deed, the of-fice of which is to express the grantor and grantee, and the land, or thing granted or conveyed. 5 Rep. 55. See Conveyance; Deed, II. No person, not named in the premises, can take any thing by the deed, though he be afterwards named in the habendum, because the premises of the deed make the gift; therefore, when the lands are given to one in the premises, the habendum cannot give any share of them to another, because that would be to retract the gift made and consequently, to make a deed re-pugnant in itself. Thus, for instance, if a charter of feoffment be made be-tween A. of the one part, and B. and D. of the other part, and A. gives land to B. habendum to B. and D. and their heirs : D. takes nothing by the ha-bendum, because all the lands were given to B., consequently D. cannot hold those lands which are given before to another; but in this case, if the haben-dum had been to B. and D. and their heirs, to the use of B. and D.; this had been a good limitation of a use; consequently, the statute of uses would carry the possession to the use, and B. and D. thereby become joint-tenants. Co. Lit. 6 a; 9 Co. 47 6; Hob. 275, 313; 2 Rol. Ahr. 65; Cm. Jac. 564; Cro. Eliz. 58; 13 Co. 54; Poph. 126. If lands be given to a husband, habendum to him and his wife, and to the heirs of their two bodies, the wife takes nothing, because she was not men-tioned in the premises; therefore shall take nothing of that which was before given entirely to her husband. 2 Rol. Abr. 67.



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But there are four exceptions to this rule: T. Tf the lands be given in frank-marriage, the woman, who is the cause of the gift, may take by the haben-dum, though she be not named in the premises; as if lands be given to J. S., habendum maritagittm and cum the woman who is daughter of the donor; this is a good estate in frank-marriage to them both; because the gift being totally on her account, it is necessary to the creation of the estate in the husband that the wife should take. Co. Lift. 21; Plowd. 158; Cro. Jac. 455; Poph. 126; 2 Rol. Abr. 67. 2. In grants of copy of court-roll; as if a copy-holder surrenders to his lord, without limiting any use, and then the lord grants it in this manner; J. S. cepit de Domino, habendum to the said J. S. and his wife, and the heirs of their bodies begotten, this is a good estate-tail in the wife; for these custom-ary grants that are made in pursuance of a former surrender, are construed according to the intention of the parties, as wills are; besides, the custom of the manor is the rule for the exposition of such sorts of grants, and, in many manors, suc!i lcrm is usual. Poph. 125, 126; Cro. Jac. 434; 2 Rii Abr. 67 ; Cro. Eliz. 323. 3. A man not named in the premises may take an estate in remainder by limitation in the habendum. 2 Rol. Abr. 68 ; Hob. 313; Cro. Jac. 564. 4. In wills; for if a man devises lands to J. S. habendum, to him and his wife, this is a good devise to the wife ; because, in construction of wills, the inten-tion of the devisor is chiefly regarded ; and wherever that discovers itself it shall take place, though it be not expressed in those legal forms that are re-quired in conveyances executed in a man's lifetime. Plorvd. 158, 414; 2 Rol. Abr. 68. PREMIUM, preemium.'] A reward. Among merchants it is used for the money the insured gives the insurer for insuring the safe return of any ship or merchandise. See Insurance.



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PRENDER. The power or right of taking a thing^ before it is offered; from the French prendre, i. e. accipere; hence the phrase of law, it lies in render, but not in prender. Rep. 1. PRENDER DE BARON, to take a husband.] It was used for an exception to disable a woman from pursuing an appeal of murder, against one who had killed her former husband. St. P. C. lib. 3. c. 59. PREPENSED, prarpenms.'] Forethought; as prepensed malice is malitia prcecogitata, which makes killing murder ; and when a man is slain on a sudden quarrel, if there were malice prepensed formerly between the par-ties, it is murder, or as it is called by the statute, prepensed murder. See Homicide, III. 3. PREROGATIVE, from prce and rogo, to ask or demand, before or above oth-ers.] A word of large extent, including all the rights which, by law, the king hath as chief of the kingdom, and as intrusted with the execution of the laws. The king, by virtue of his prerogative, is exempted from the payment of taxes collected personally from the subject, and not mingled with the price of the commodity, before it is known by whom it is to be made use of; therefore an express sent upon government service is not liable to pay the posthorse dnty. 3 East's Rep. K. B. 519. A palace being kept in a constant state of preparation to receive the king, with his officers and guards residing and doing duty there at all times, and some of the royal family having apartments there, is privileged as a royal palace against the intrusion of the sheriff for the purpose of executing proc-ess against the goods of a person having the use of certain apartments there. 10 East's Rep. 578. See further, tit. King, V. PREROGATIVE COURT, Curia Prcerogativa Archiepiscopi Cantuarien-sis.~] The court wherein all wills are proved, and all administrations taken which belong to the archbishop by his prerogative ; that is, in case where



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the deceased had goods of any considerable value out of the diocese wherein he died; and that value is ordinarily 5/. except it be otherwise by composi-tion between the archbishop and some other bishop, as in the diocese of London it is 10/.; and if any contention grow between two or more, touching such will or administration, the cause is properly decided in this court, the judge whereof is termed Judex Curiae Prcerogalivee Cantuariensis, the Judge of the Prerogative Court of Canterbury. See Courts Ecclesiastical; Will. The archbishop of York hath also the like court, which is termed his ex-chequer, but inferior to this in power and profit. 4 Inst. 335. As to the pre-rogative of the archbishop of Canterbury or York, see the book intituled De Antiquitate Britannicce Ecclesiee Canluariensis Historia, especially the eighth chapter, p. 25. Cornell. PRESBYTER. A priest, elder, or honourable person. Isidore, lib. 7. PRESBYTERIUM. A presbytery; that part of the church where divine of-fices are performed, applied to the choir or chancel, because it was the place appropriated to the bishop, priest, and other clergy ; while the laity were confined to the body of the church. Mon. Ang. i. 213. PRESBYTERIAN. A member of the Church of Scotland. See Dissenters, Nonconformists. PRESCRIPTION, Pr.kscriptio.] A title acquired by use and time, and allowed by law ; as when a man claims any thing because he, his ancestors, or they whose estate he hath, have had or used it all the time whereof no memory is to the contrary : or it is where for continuance of time, ultra memoriam hominis, a particular person hath a particular right against another. Kitch. 104; Co. Litt. 114; 4 Rep. 32.



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According to Lord Coke, prcescriptio est titulus ex usu et tempore substan-tiam capiens ah auctoritate legis. 1 Inst. 113 6. And a prescription must have a lawful commencement, and peaceable pos-session and time are inseparably incident to it. Co. Litt. 113. Blackstone classes title by prescription among the methods of acquiring real property by purchase ; -as when a man can show no other title to what he claims than that he, and those under whom he claims, have immemorially used to enjoy it. Every species of prescription by which property is acquired or lost, is founded on this presumption, that he who has a quiet and uninterrupted possession of any thing for a certain number of years, is supposed to have a just Tight, without which he would not have been suffered to continue in the enjoyment of it; for a long possession may be considered as a better title than can commonly be produced, as it supposes an acquiescence in all other claimants, and that acquiescence also supposes some reason for which the claim is forborne. 1 Domat. 461. As to customs or immemorial usages in general, with the several requisites and rules to be observed, in order to prove their existence and validity, see Custom. I. Of the Distinction between a Prescription and a Custom or Usage, and mho may prescribe. II. What sort of things may be prescribed for. III. For what length of lime a Prescription must be claimed. IV. How Prescriptive Rights may be lost. I. Custom is properly a local usage, and not annexed to any person ; such as a custom in the manor of Dale, that lands shall descend to the youngest son. Prescription is merely a personal usage; as, that such an one and his ances-tors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege. 1 Inst. 113. As for example : If there be an usage



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in the parish of Dale that all the inhabitants of that parish may dance on a certain close at all times for their recreation (which is held to be a lawful usage, 1 Lev. 176; see post, II.), this is strictly a custom, for it is applied to the place in general, and not to any particular persons ; but if the tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is an usage annexed to the person of the owner of his estate. 2 Comm. c. 17. The difference between prescription, custom, and usage, is also thus stated : Prescription hath respect to a certain person, who by intendment may have continuance for ever ; as, for instance, he and all they whose estate he hath in such a thing, this is a prescription. Custom is local, and always applied to a certain place; as, time out of mind there has been such a custom in such a place, &c. And prescription belon-geth to one or a few only; but custom is common to all. Usage differs from both, for it may be either to persons or places ; as to inhabitants of a town, to have a way, &c. 2 Nets. Abr. 1277. A custom and prescription are in the right; usage is in possession; and a prescription that is good for the matter and substance, may be bad by the manner of setting it forth; but where that which is claimed as a custom, in or for many, will be good, that regularly will be so when claimed by pre-scription for one. Godb. 54. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath; which last is called prescribing in a que estate. 4 Rep. 32.



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Prescriptions properly are personal, therefore are always alleged in the per-son of him who prescribes; viz. that he, his ancestors, or all those whose es-tate he hath, &c; or of a body politic or corporation, they and their predeces-sors, &c. Also a parson may prescribe, quwl ipse et prcedecessores sui, and all they whose estate, &c.; for there is a perpetual estate, and a perpetual succession, and the successor hath the very same estate which his predeces-sor had, which continues, though the person alters, like the case of ancestor and heir. 3 Salk. 279. Previous to the recent act of the 2 & 3 Wm. 4. c. 71. a prescription must al-ways have been laid in him that was tenant of the fee. A tenant for life, for years, at will, or a copyholder, could not prescribe, by reason of the imbecil-ity of their estates. 4 Rep. 31, 32. For as prescription was deemed usage be-yond time of memory, it was absurd that they should pretend to prescribe for any thing whose estates commenced within the remembrance of man. And therefore the copyholder must have prescribed under cover of his lord's estate, and the tenant for life under cover of the tenant in fee-simple. As, if tenant for life of a manor would prescribe for a right of common as appurte-nant to the same, he must have prescribed under cover of the tenant in fee-simple, and have pleaded that John Stiles and his ancestors had immemori-ally used to have this right of commons appurtenant to the said manor, and that John Stiles demised the said manor, with its appurtenances, to him the said tenant for life. 2 Comm. c. 17. Now by the fifth section of the above act it is no longer necessary to claim in the name of the owner of the fee. See post. Where a person would have a thing that lies in grant by prescription, he must prescribe in himself and his ancestors, whose heir he is by descent; not in himself and those whose estate, &c. (unless the que estate is but a con-



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veyance to the thing claimed by prescription) ; for he cannot have their es-tate that lies in grant without deed, which ought to be shown to the court. Co. Litt. 113. Parishioners cannot generally prescribe, but they may allege a custom ; and inhabitants may prescribe in a matter of easement, way to a church, bury-ing-place, &x. 2 Saund. 325 ; 1 Lev. 253 ; Cro. Eliz. 44-1 ; Cro. Car. 419 ; 2 Rol. 290. A custom for all the inhabitants of a parish to play at all kinds of lawful games, sports, and pastimes, in a certain close, at all seasonable times of the year, at their free will and pleasure, is good. But a similar custom for all persons, for the time being in the said parish, is bad. 2 II. Black. Rep. 393. See post, II. A prescription may be laid in several persons, where it tends only to matters of easement or discharge ; though not where it goes to matter of interest or profit in alieno solo, for that is a title, and the title of one doth not concern the other ; therefore several men, having several estates, cannot join in making a prescription. 1 Mod. 74 ; 3 Mod. 250. Where a man prescribes for a way to such a close, he must show what inter-est he hath in the close. Aliter, if he prescribes for a way to such a field ; be-cause that may be a common field by intendment. Latch. ICO. Plaintiff declared that the occupiers of the adjoining field have, time out of mind, repaired the fences, which being out of repair, his beasts escaped out of his own ground and fell into a pit; it is good, without showing any estate in the occupiers ; but it had not been so if the defendant had prescribed. 1 Ventr. 204. It should seem that a prescription by the owner of land, adjoining to a wood, to take underwood there growing to repair the fence belonging to the wood, is not good ; for of common right the making of the hedge doth appertain to



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the owner of the wood; and the prescription is no more than to take wood in the lands of another, to make the hedges of the same land in which the wood groweth, which cannot be a good prescription, for it sounds only in charge, and not to the profit of him who prescribes. 1 Leon. 313. Estates gained by prescription are not of course descendible to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo; and therefore if a man prescribes for a right of way in himself and his ancestors, it will de-scend only to the blood of that line of ancestors in whom he so prescribes ; the prescription in this case being indeed a species of descent. But if he pre-scribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase ; for every accessory fol-loweth the nature of its principal. 2 Comm. c. 17. p. 266. II. Nothing but incorporeal hereditaments can be claimed by prescription ; as a right of way, a common, &c.; but no prescription can give a title to lands and other corporeal substances, of which more certain evidence may be had. Dr. fy St. Dial. 1. c. 8; Finch. 132. For a man shall not be said to pre-scribe that he and his ancestors have immemorially used to hold the castle of Arundel; for this is clearly another sort of a title ; a title by corporal seisin and inheritance, which is more permanent, and therefore more capable of proof than that of prescription. But as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. See Com-mon Pen, &c.



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A prescription cannot be for a thing which cannot be raised by grant; for the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers ; for as such claim could never have been good by any grant, it shall not be good by pre-scription. 1 Ventr. 387. A grant may enure as a confirmation of a prescription; and the prescription continue unaltered by a new charter, &c. where the charter is not contrary to the prescription. Moor, 818, 830. But in some cases it is intended that a prescription shall begin by grant; and as to prescriptions in general, the law supposes a grant or purchase originally. Cro. Eliz. 709; Co. Litt. 113. What is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record ; such as, for instance, the royal fran-chises of deodands, felons' goods, and the like. These not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any infe-rior title. But the franchises of treasuretrove, waifs, estrays, and the like, may be claimed by prescription ; for they arise by private contingencies, and not from any matter of record. Co. Litt. 114. See Franchise. Among things incorporeal which may be claimed by prescription a distinc-tion must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ances-tors. For if a man prescribe in a que estate (that is, in himself and those whose estate he holds), nothing is claimable by this prescription but such things as are incident, appendant, or appurtenant to lands ; for it would be absurd to claim any thing as the consequence or appendix of an estate with which the thing claimed has no connexion ; but if he prescribe in himself and his ancestors, he may prescribe for any thing whatsoever that lies in



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grant; not only things that are appurtenant, but also such as may be in gross. Litt. § 183; Finch. L. 104. Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale as appendant to that manor ; but if the advowson be a dis-tinct inheritance, and not appendant, then he can only prescribe in his an-cestors. So also a man may prescribe in a que estate for a common appurte-nant to a manor ; but if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 2 Comm. c. 17. A person may make title by prescription to an office, a fair, market, toll, way, water, rent, common, park, warren, franchise, court-leet, waifs, es-trays, &c. But no person can prescribe against an act of parliament, or against the king, where he hath a certain estate and interest,—against the public good, religion, &c. Nor can one prescription be pleaded against an-other, unless the first is answered or traversed;. or where one may stand with the other. Lutrv. 381 ; Raym. 232 ; 2 Rol. Abr. 264 ; 2 Inst. 167 ; 7 Rep. 28 ; Cro. Car. 432; 1 Bulst. 115; 2 Lit. 346. The word easement is a genus to several species of liberties which one may have in the soil of another, without claiming any interest in the land itself; but where the thing set forth in a prescription was to catch fish in the water of another, &c. and no instance could be given of a prescription for such a liberty by the word easement, a rule was made to set the prescription right, and to try the merits. 4 Mod. 362. See further, tit. Easement. In trespass for breaking the plaintiffs close, the defendant prescribed that the inhabitants of such a place, time out of mind, had used to dance there at all times of the year for their recreation, and so justified ; issue being taken on this prescription, defendant had a verdict: it was objected against it, that a prescription to dance in the freehold of another, and spoil his grass, was ill, especially as laid in the defendant's plea, viz. at all times of the year, and



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not at seasonable times, and for all the inhabitants, who, though they may prescribe in easements which are necessary, as a way to a church, &c. they cannot in easements for pleasure only ; but adjudged that the prescription is good, issue being taken on it, and found for the defendant, although it might have been ill on demurrer. 1 Lev. 175. See ante, I. A custom that the farmers of such a farm have always found ale, &c. to such a value, at perambulations, was held naught, because it is no more than a prescription in occupiers, which is notgood in matter to charge the land. 2 Lev. 164. Prescription by the inhabitants of a parish to dig gravel in such a pit, the soil of W. R., it was doubted whether this was good or not, though it was to repair the highway; but the inhabitants may prescribe for a way, and, by consequence, for necessary materials to repair it. 2 Lutw. 1346. Sed rju.? And see Gateniood's case, 6 Co. 60. where prescription for common for every inhabitant of an ancient messuage in a parish is held not to be good. Defendant pleaded that within such a parish all occupiers of a certain close habcnt, et habere consueverent, a way leading over the plaintiff's close to the defendant's house ; this was held ill, for it is not like a prescription to a way to the church or market, which are necessary, et pro bono publico. 2 Ventr. 186. A man may claim a fold-course, and exclude the owner of the soil by pre-scription. 1 Sound. 153. But a diversity hath been taken where a prescrip-tion takes away the whole interest of the owner of the land ; and where a particular profit is restrained; in one case it is good, in the other void. 1 Leon. 11. If a person prescribes for common appurtenant, it is ill, unless it be for cat-tle levant et couchant, &c. And the reason is, because by such a prescription the party claims only some part of the pasture, and the quantum is ascer-



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tained by the levancy and couchancy, the rest being left to the owner of the soil ; therefore, if he who thus prescribes should put in more cattle than are levant and couchant on his tenement, he is a trespasser. Noy, 145; 2 Saund. 324. In a prescription to have common, the jury found it to be, paying every year a penny. Here the prescription is entire, whereof the payment of one penny is parcel; which ought to be entirely alleged in ths prescription in the plea, or it will not be good. Cro. Eliz. 563, 564. But where the payment is collat-eral from the prescription, a prescription may be good without alleging it. Cro. Eliz. 405. Common for cattle levant and couchant, or a right of common without stint, cannot be claimed by prescription, as appurtenant to a house without any curtilage or land. 5 T. R. 46 ; ST. R. 396. It was a question, whether a toll, independent of markets and fairs, might be claimed by prescription, without showing that the subject hath some benefit; and some arguments Vol. n. were brought for it, from an authority in Dyer, 352. Though by Holt, this prescription cannot be good, because there was no recompense for it; and every prescription to charge the subject with a duty, must import some benefit to him who pays it; or else some reason must be shown why the duty is claimed. 4 Mod. 319. A prescription for toll, in respect of goods sold in a market by sample, and afterwards brought into the city to be delivered, cannot be supported. 4 Taunt. 410. A court-leet is derived out of the hundred : and if a man claims a title to the leet, he may prescribe that he and his ancestors, and all those whose estate he hath in the hundred, time out of mind, had a leet. Co. Litt. 125.



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There may be a prescription for a court to hold pleas of all actions, and for any sum or damage ; and it will be good. Jenk. Cent. 327. If a court held by prescription is granted and confirmed by letters-patent, this doth not de-stroy the prescription ; but it is said the court may be held by prescription as before. 2 Rol. Abr. 271. The lord of a manor (in Jersey), in order to establish an exclusive right of cutting sea-weed on rocks below low watermark, must prove either a grant from the king, or the exclusive possession of such privilege for so long a lime as to confer on him a title by prescription. The possession required to estab-lish a prescription must be long, continued, and peaceable, by the laws of England, the civil law, and those of Norway, France, and Jersey. Knapp. 50. Every prescription is taken strictly ; and a man ought not to prescribe to that which the law, of common right, gives, 3 Leon. 13; Noy, 20. III. Previous to the act of the 2 & 3 Wm. 4. c. 71. to constitute a prescription, the enjoyment must have existed time out of mind, or in other words, must have commenced antecedent to the reign of Richard I. Bract. 1. 2. c. 22; 3 Lev. 160; 1 Comm. 75 ; 2 Id. 263. But in order to prevent disputes as to rights which had been long and peaceably enjoyed, the courts interpreted an enjoyment of an incorporeal right for even twenty years as presumptive evi-dence that the right had existed time out of mind, and consequently that pe-riod was held a sufficient foundation for establishing a prescriptive right, unless its origin could be proved. 10 East, 476 ; 2 Brod. 8? Bing. 403 ; Cowp. 215 ; 2 Wils. 23. By the above statute, intituled " An Act for shortening the Time of Prescrip-tion in certain Cases," the first section, after reciting that " the expression ' time immemorial, or time whereof the memory of man runneth not to the contrary,' is now by the law of England in many cases considered to include and denote the whole period of time from the reign of King Richard I.



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whereby the title to matters that have been long enjoyed is sometimes de-feased by showing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice, enacts, " that no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken and en-joyed from or upon any land of our sovereign lord the king, his heirs or suc-cessors, or any land being parcel of the duchy of Lancaster or of the duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matters and things as are therein specially provided for, and except tithes, rent, and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or de-stroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be defeated in any other way by which the same is now li-able to be defeated ; and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed abso lute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement ex-pressly made or given for that purpose by deed or writing." By § 2. "no claim which may be lawfully made at the common law, by cus-tom, prescription, or grant, to any way or other easement, or to any water-course, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the king, his heirs or successors, or being parcel of the duchy of Lancaster or of the duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actu-ally enjoyed by any person claiming right thereto without interruption for



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the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated ; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing." For the third section of the act, relating to the use of light, see Lights. § 4. Each of the respective periods of years therein-before mentioned shall be deemed to be the period next before some suit or action wherein the claim or matter to which such period may relate shall be brought into ques-tion, and that no act shall be an interruption, within the meaning of the statute, unless the same shall have been submitted to or acquiesced in for one year after the party interrupted shall have had notice thereof, and of the person making or authorizing the same. § 5. In all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the ex-istence of such right from time immemorial, such general allegation shall still be sufficient, and if the same shall be denied, all the matters in the act mentioned and provided, applicable to the case, shall be admissible in evi-dence to sustain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings wherein before the act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupi-ers of the tenement in respect whereof the same is claimed for such of the periods mentioned in the act as may be applicable to the case, and without



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claiming in the name or right of the owner of the fee, as is now usually done ; and if the other party shall intend to rely on any proviso, exception, inca-pacity, disability, contract, agreement, or other matter therein-before men-tioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation. § 6. In the several cases mentioned in and provided for by the act, no pre-sumption shall be allowed or made in support of any claim, upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in the act as may be applicable to the case and to the nature of the claim. § 7. provided, that the time during which any person otherwise capable of resisting any claim to any of the matters before mentioned shall have been or shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods herein-before mentioned, except only in cases where the right or claim is thereby declared to be absolute and indefeasible. § 8. provided, that when any land or water upon, over, or from which any such way or other convenient watercourse or use of water shall have been enjoyed or derived hath been or shall be held under any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as therein last before men-tioned, during the continuance of such term, shall be excluded in the compu-tation of the said period of forty years, in case the claim shall within three



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years next after the end or sooner determination of such term be resisted by any person entitled to any reversion expectant on the determination thereof. The act does not extend to Scotland or Ireland. As to prescriptions of modus decimandi, see Tithes. IV. Formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended for an indefi-nite series of years. Co. Litt. 113. But by the statute of limitations, 32 Hen. 8. c. 2. it is enacted that no persons shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or pos-session hath been within threescore years next before such prescription made. And the remedy for such rights, so far as it depends upon real actions, is further abridged by the abolition of real actions by the 3 & 4 Win. 4. c. 27. § 36. See Limitation of Actions, II. 1. Where a profit of any kind, to be taken out of lands, has not been taken for a vast number of years, and the lands have been enjoyed without yielding it to a third person, the consequence is, that the title to such profit, whatever its nature shall be presumed to be, is discharged. 3 Bligh. 245. But a title gained by prescription or custom, is not lost by mere interruption of posses-sion for ten or twenty years, unless there be an interruption of the right, as by unity of possession of right of common, and the land charged therewith of an estate equally high and perdurable in both. Co. Litt. 114 6. An unity of possession merely suspends, there must be an unity of ownership to destroy a prescriptive right. Canham v. Fish, 2 Or. § Jen. 126. Thus if a person, hav-ing a right of common by prescription, takes a lease of the land for twenty years, whereby the common is suspended, he may, after the determination of the lease, claim the common again by prescription, for the suspension was



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only of the enjoyment, not of the right. Co. Litt. 113 b. A prescriptive right may be lost by the destruction of the subject matter ; 4 Rep. 88 ; but not by an alteration of the quality of the thing to which a prescription is annexed. Hob. 39; 4 Rep. 86 a, 87 a. An ancient grant, without date, did not necessar-ily destroy a prescriptive right; for it might be either before time of memory, or in confirmation of such prescriptive right, which is matter to be left to a jury. 2 Bl. Rep. 989. It seems that a release of a right of way, or a right of common, will not be presumed by mere non-user for a less period than twenty years, although it is otherwise as to lights. Moore v. Raivson, 3 B. Sf Cr. 339. See Lights. The right to hold courts for the determination ot civil suits, granted by the king's charter to the stewards and suitors of a court of ancient demesne, was held not to be lost by a non-user of fifty years. 5 B. fy A. 691 ; Id. 692 n. Formerly a prescription could not run against the king, for nullum tempus occurrit regi. 2 Roll. 264. 1.40; Com. Dig. Prescription, F. 1. And liberties and franchises were excepted in the 9 Geo. 3. c. 16. limiting the claims of the crown for sixty years ; but see the 32 Geo. 3. c. 58. The recent statute of the 2 & 3 Wm. 4. c. 71. it will be seen, applies equally to the crown as to the subject. Prescriptions against Actions and Statutes, see Limitation of Actions, II. 2. Prescriptions by the ecclesiastical law, as to the tithes, &c, see Modus Decimandi, Tithes. PRESENCE. Sometimes the presence of a superior magistrate takes away the power of an inferior. 9 Rep. 118. And the presence of one may serve for all the feoffees or grantees, &c. 3 Rep. 26. When the presence of a man in the place where an offence is done, may make him guilty, see Accessary.



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PRESENTATION, presentation The act of a patron, offering his clerk to the bishop of the diocese, to be instituted in a church or benefice of his gift, which has become void. See Advowson, Parson. PRESENTEE. The clerk presented to a church by the patron. In 13 Rich. 2. st. 1. c. 1. the king's presentee is he whom the king presents to a benefice. PRESENTMENT. The old term for presentation to a church. See that title. In its more modern and now usual sense it signifies a denunciation of ju-rors, or some officers, &c. (without any information) of an offence, inquirable in the court where it is presented. Lamb. Eiren. lib. 4. c. 5. Or it may be de-fined to be an information made by the jury in a court, before a judge who hath authority to punish an offence. 2 Inst. 739. The presentment is drawn up in English by the jury, and differs from an in-dictment in that an indictment is drawn up at large, and brought engrossed to the grand jury to find. 2 Lill. Abr. 353. A presentment, generally taken, is a very comprehensive term ; including not only presentments, properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observa-tion, without any bill of indictment laid before them, at the suit of the king. Lamb. Eiren. I. 4. c. 5. As the presentment of a nuisance, a libel, and the like ; upon which the officer of the court must afterwards frame an indict-ment before the party presented can be put to answer it. 2 Inst. 739. An in-quisition of office is the act of a jury, summoned by the proper officer to in-quire of matters relating to the crown, upon evidence laid before them. See Inquest. Some of these are in themselves convictions, and cannot afterwards be traversed or denied ; and therefore the inquest or jury ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; and formerly of flight in persons accused of felony ; of deodands, and



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the like; and presentments of petty officers in the sheriff's tourn or court-leet, whereupon the presiding officer may set a fine. Other inquisitions may be afterwards traversed or examined; as particularly the coroner's inquisi-tion of the death of a man, when he finds any one guilty of homicide; for in such cases the offender so presented must be arraigned upon this inquest, and may dispute the truth of it, which brings it to a kind of indictment. There are also presentments of justices of peace in their sessions of offences against statutes, in order to their punishment in superior courts ; and pre-sentments taken before commissioners of sewers, &c. Presentments are made in courtsleet and courts-baron, before stewards ; and in the latter of surrenders, grants, &c. Also by constables, churchwardens, surveyors of the highways, &c. of things belonging to their offices. See Copyhold, Surrender. By the 7 & 8 Geo. 4. c. 38. after the passing of that act no petty constable shall be required at any petty sessions or elsewhere to make, nor shall any high constable be required at any general gaol delivery, great sessions, or general or quarter sessions of the peace in England, to deliver any present-ment respecting— Popish recusants, Absence from church or place of wor-ship, Rogues and vagabonds, &c. PRESIDENT OF THE COUNCIL. Is the fourth great officer of state. See Precedence. He is as ancient as the reign of King John; and hath sometimes been called Principalis Consiliarius, and other times Capitalis Consiliarius. During the reign of Queen Eliza-beth the office remained dormant. It appears to have been exercised in the reign of James I. and was revived by Charles II. See Privy Council. The office of president of the council has been always granted by letters-patent under the great seal durante bene placito; and this officer is to attend on the king, to propose business at the council-table, and report to his majesty the transactions there; also he may associate the lord chancel-lor, treasurer, and privy seal, at naming of sheriffs ; and all other acts limited by any statute, to be done by them. 21 Hen. 8. c. 20. See 1 Comm. 230.



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§ 379. c. Imparlance.—After defense made, the defendant must put in his plea. But, before he defends,

if the suit is commenced by capias or latitat, without any special original, he is entitled to demand one

imparlance* or licentia loqutndi (liberty of speaking) ; and may, before he pleads, have more granted

by consent of the court, to see if he can end the matter amicably without further suit, by talking with

the plaintiff: a practice which is' supposed to have arisen from a principle of religion, in obedience to

tfiat precept of the gospel, "agree with thine adversary quickly, whilst thou art in the way with him." 8

And it may be observed that this gospel precept has a plain reference to the Roman law of the twelve

tables, which expressly directed the plaintiff and defendant to make up the matter, while they were in

the way, or going to the pnetor;— in via, rem ubi pacunt, orato (where the parties come to terms, let

the matter be settled).

§ 380. d. Demand of view.—There are also many other previous steps which may be taken by a defen-

dant before he puts in

* This entire paragraph with the notes was in fifth edition transferred from the close of that succeed-

ing. It is almost superfluous to say that the entire contents of it is obsolete now.— Hammond.

« Hob. 87. Year-Book, M. 8. Hen. VI. 20 (1429). In this latter case the Chancellor of Oxford claimed

cognizance of an action of trespass brought against himself; which was disallowed, because he should

not be judge in his own cause. The argument used by Serjeant Eolfe, on behalf of the cognizance, is

curious and worth transcribing.— Jco vous dirai un fable. En ascun temps fuit un pape, et avoit fait un

grand offence, et le cardinals vindrent a luy et disoyent a luy, "peccasti": et il dit, "judica me": et Us

disoyent, "non possumus, quia caput es ecclesia; judica tcipsum": et Vapostol' dit, "judico me cre-

mari"; et fuit combustus; et apres fuit un sainct. Jit in ceo cos U fuit son juge demene, et issint n'est pas

inconvenient que un home soit juge demene. (I will tell you a story. There was formerly a pope, and he

committed a great crime, and the cardinals came to him, and said, "Thou hast sinned"; and he said,

"Judge me"; and they answered, "We cannot, for thou art the head of the church; judge thyself"; and

the apostle said, "I sentence mjself to be burned"; and burned he was; and afterwards he was made a

saint. And in that case he was his own judge, and therefore it is not improper that a man should judge

himself.)

• Appendix, No. ITT, 5 6. ¦ Matth. T. 25. t Gilb. Hist. Com. PI. 35.



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Bl. Comm.—119 1889

his plea. He may, in real actions, demand a view of the thing in question, in order to ascertain its iden-

tity and other circumstances.

§ 381. e. Oyer.—He may crave oyer" of the writ, or of the bond, or other specialty upon which the ac-

tion is brought; that is, to hear it read to him, the generality of defendants in the times of ancient sim-

plicity being supposed incapable to read it themselves: whereupon the whole is entered verbatim upon

the record, and the defendant may take advantage of any condition or other part of it not stated in the

plaintiff's declaration.

§ 382. f. Prayer in aid.—t 3001 In real actions, also, the tenant may pray in aid, or call for assistance of

another, to help him to plead because of the feebleness or imbecility of his own estate. Thus a tenant

for life may pray in aid of him that hath the inheritance in remainder or reversion, and an incumbent

may pray in aid of the patron and ordinary; that is, that they shall be joined in the action and help to

defend the title.

§ 383. g. Voucher.— Voucher, also, is the calling in of some person to answer the action that hath

warranted the title to the tenant or defendant. This we still make use of in the form of common recov-

eries, 1 which are grounded on a writ of entry; a species of action that we may remember relies chiefly

on the weakness of the tenant's title, who therefore vouches another person to warrant it. If the

vouchee appears, he is made defendant instead of the voucher, but, if he afterwards makes default, re-

covery shall be had against the original defendant, and he shall recover over an equivalent in value

against the deficient vouchee. In assizes, indeed, when the principal question is whether the demandant

or his ancestors were or were not in possession till the ouster happened, and the title of the tenant is

little (if at all) discussed, there no voucher is allowed; but the tenant may bring a writ of warrantia

chartce, against the warrantor, to compel him to assist him with a good plea or defense, or else to ren-

der damages and the value of the land, if recovered against the tenant/

§ 384. h. Parol demurrer.—In many real actions also, 1 brought by or against an infant under the age

of twenty-one years,

h Appendix, No. Ill, § 6. k F. N. B. 135.

i Book II. Append. No. V. J 2. i Dyer. 137.



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and also in actions of debt brought against him, as heir to any deceased ancestor, either party may sug-

gest the nonage of the infant, and pray that the proceedings may be deferred till his full age, or, in our

legal phrase, that the infant may have his age, and that th»: parol may demur, that is, that the pleadings

may be stayed; and then they shall not proceed till his full age, unless it be apparent that he cannot be

prejudiced thereby." 1 But, by the statutes of Westm. I, 3 Edward I, c. 46 (Order of Hearing Pleas,

1275), and of Gloucester, 6 Edward I, c. 2 (Real Actions, 1278), in writs of entry sur disseisin in some

particular cases, and in actions ancestral brought by I 301 ! an infant, the parol shall not demur; other-

wise he might be deforced of his whole property, and even want a maintenance, till he came of age.

So, likewise, in a writ of dower the heir shall not have his age; for it is necessary that the widow's

claim be immediately determined, else she may want a present subsistence." Nor shall an infant patron

have it in a quare impedit," since the law holds it necessary and expedient that the church be immedi-

ately filled.

§ 385. 3. Defendant's plea.—When these proceedings arc over, the defendant must then put in his ex-

cuse or plea. Pleas are of two sorts; dilatory pleas, and pleas to the action.

§ 386. a. Dilatory pleas.—Dilatory pleas are such as tend merely to delay or put off the suit, by ques-

tioning the propriety of the remedy rather than by denying the injury; pleas to the action are such as

dispute the very cause of suit. The former cannot be pleaded after a general imparlance, which is an

acknowledgment of the propriety of the action. For imparlances are either general, of which we have

before spoken, and which are granted of course, or special, with a saving of all exceptions to the writ

or count, which may be granted by the prothonotary; or they may be still more special, with a saving

of all exceptions whatsoever, which are granted at the discretion of the court."

§ 387. (1) Plea to the jurisdiction.—Dilatory pleas are, 1. To the jurisdiction of the court: alleging, that

it ought not to hold plea

m Finch. L. 360. o Ibid. 138.

n 1 Roll. Abr. 137. P 12 Mod. 529.

of this injury, it arising in Wales or beyond sea; 5 or because the land in question is of ancient de-

mesne, and ought only to be demanded in the lord's court, etc.



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§ 388. (2) Plea to the disability of plaintiff.—To the disability of the plaintiff, by reason whereof he is

incapable to commence or continue the suit, as that he is an alien enemy, outlawed, excommunicated,

attainted of treason or felony, under a prcemunire, not in rerum natura —in the nature of things (being

only a fictitious person), an infant, a feme covert, or a monk professed.

§ 389. (3) Plea in abatement.—In abatement: which abatement is either of the I 302 ) writ, or the

count, for some defect in one of them, as by misnaming the defendant, which is called a misnomer;

giving him a wrong addition, as esquire instead of knight; or other want of form in any material re-

spect. Or, it may be, that the plaintiff is dead; for the death of either party is at once an abatement of

the suit. And in actions merely personal, arising ex delicto (from wrong done), for wrongs actually

done or

5 Demurrer for lack of jurisdiction—Abatement.—It has been held from a very early date in this coun-

try that where the jurisdiction fails entirely (as distinguished from cases of special jurisdiction like that

of the lord's court, which cases are very rare here) no plea to the jurisdiction is necessary. The court

may take notice of the defect in its jurisdiction without it. (Lawrence v. Smith, 5 Mass. 362; Bischoff

v. Wethcred, 9 Wall. 812, 19 L. Ed. 829; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Claflin v.

Commonwealth Ins. Co., 110 U. S. 81, 28 L. Ed. 76, 3 Sup. Ct. Rep. 507.) In such a case the plea can-

not give jurisdiction to any other court of the same state, and is therefore bail. (Lawrence v. Smith, su-

pra.) Nor can the parties by stipulation give jurisdiction and prevent the court from taking notice of the

defect. (Webster v. Buffalo Ins. Co., 110 U. S. 3S6, 28 L. Ed. 172, 4 Sup. Ct. Rep. 79.)

Abatement of the action by death of a party is held to be no longer a mere matter of procedure, to be

taken advantage of by a dilatory plea, but a part of the substance of the action. A cause of action which

abates by common law cannot be revived in a court of the United States unless an act of Congress al-

lows it to survive. Although these courts follow the procedure of the state courts, and the latter allows

a revivor of the action, it cannot be Revived in the federal courts. Whether an action survives depends

on the sulstance of the cause of action, not on the forms of procedure to enforce it. (Ex parte Schreiber,

110 IT. S. 76, 77, 28 L. Ed. 65, 3 Sup. Ct. Rep. 423. See, also, Baker v. Crandall, 78 Mo. 584, 47 Am.

Rep. 126.— Hammond.



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WRIT OF PRAEMUNIRE FACIAS /s/ John F. Hutchens, parens patriae; Tenant in-Chief; Warden of the Arboretum, Gales & Stannaries






CHANCELLOR – FREEMINERS’ UNIVERSITY / TENANT-IN-CHIEF OPERATING OFFICER


RELOCATION AND REMAINDER OF THE MOUNTAIN COPPER CO., IRON MOUNTAIN

INVESTMENT CO., THE LOST CONFIDENCE MINE, LOST CALIFORNIA FOREST OF THE

NORTH, THE CAMDEN & MAGEE AGRICULTURAL COLLEGE, IRON MOUNTAIN MINE,

ALL SERVIENT HERITAGE TO THE VESTED AND ACCRUED EXISTING RIGHTS OF THE

LOCATORS BY MR. T.W. ARMAN. HIS HEIRS AND ASSIGNS, FOREVER.

QUO WARRANTO b ™ u £ „„ jf-t ERROR: HUTCHENS v. MENDEZ

Commote Alodium & Alodarii,

Placita coram locum domini regis tenentibus, &c. Ideo venit inde jurata coram rege vel ejus locum

tenentibus ; quodammodo Quia tria sequuntur defamatorem; Quando Dominus; remittit Curiam suam;

famosus Libellus seuinfamatoriascriptura; famosum Conscientiae detrimentum; meum et tuum; Decano

& Capitulo, habendum sibi & haeredibus & successoribus suis; ejectione firmae; Audita Querela.

Breve Capitalis Justiciarius noster and ad placita coram nobis tenenda. Majores à latere regis resi-

dentes, Coram nobis ubicunque fuerimus in Anglia super tenore recordi, Quae clamat tenere de te per

liberum seruitium & difficillimum est invenire authorem infamatoriae scripturae; Quis separabit?,

VERIFICATION AFFIDAVIT Affirmed this day. Date:_November 1, 2010_ Signature: __________________________ John F. Hutchens, Warden

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