Tenements were holden of the King in capite for this cause the suing of the Writ shall conclude the Heir onely which sueth the Livery and after his death the Iurors in a new Writ of Diem clausit extremum are at large as before is said And if that Iury finde falsly in a Tenure of the King also the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King c. in Socage the Heir may traverse the last Office for by that he is grieved onely and he shall not be driven to traverse the first Office and when the Father sueth Livery and dyeth the conclusion is executed and past as before is said And note that there is a special Livery but that proceeds of the Grace of the King and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda c. or to the Heir within age as it appeareth in 21 E. 3. 40. And that is general and shall not comprehend any Tenure as the general Livery doth and therefore it is not any estoppel without question And at the Common Law a special Livery might have been granted before any Office found but now by the Statute of 33 H 8. cap. 22. it is provided That no person or persons having Lands or Tenements above the yearly value of 20 l. shall have or sue any Livery before inquisition or Office found before the Escheator or other Commission But by an express clause in the same Act Livery may be made of the Lands and Tenements comprized or not comprized in such Office so that if Office be found of any parcel it is sufficient And if the Land in the Office doth exceed 20 l. then the Heir may sue a general Livery after Office thereof found as is aforesaid but if the Land doth not exceed 5 l. by the year then a general Livery may be sued without Office by Warrant of the Master of the Wards c. See 23 Eliz. Dyer 177. That the Queen ex debito Justitiae is not bound at this day after the said Act of 33 H 8 to grant a special Livery but it is at her election to grant a special Livery or to drive the Heir to a general Livery It was also resolved in this Case That the Office of 35 H. 8. was not traversable for his own Traverse shall prove that the King had cause to have Wardship by reason of Ward And when the King cometh to the possession by a false Office or other means upon a pretence of right where in truth he hath no right if it appeareth that the King hath any other right or interest to have the Land there none shall traverse the Office or Title of the King because that the Iudgment in the Traverse is Ideo consideratum est quod manus Domini Regis a possessione amoveantur c. which ought not to be when it appeareth to the Court that the King hath right or interest to have the Land and to hold the same accordingly See 4 H. 4. fo 33. in the Earl of Kents Case c. XXIX Mich. 7 Jacobi Regis NOte The Priviledg Order or Custom of Parliament either Parliament of the Vpper House or of the House of Commons belongs to the determination or decision onely of the Court of Parliament and this appeareth by two notable Presidents The one at the Parliament holden in the 27 year of King Henry the sixth There was a Controversie moved in the Vpper House between the Earls of Arundel and of Devonshire for their seats places and preheminences of the same to be had in the Kings presence as well in the High Court of Parliament as in his Councels and elsewhere The King by the advice of the Lords spiritual and temporal committed the same to certain Lords of Parliament who for that they had not leisure to examine the same it pleased the King by the advice of the Lords at his Parliament in anno 27 of his Reign That the Iudges of the Land should hear see and examine the Title c. and to report what they conceive herein The Iudges made report as followeth That this matter viz. of Honor and precedency between the two Earls Lords of Parliament was a matter of Parliament and belonged to the Kings Highness and the Lords spiritual and temporal in Parliament by them to be decided and determined yet being there so commanded they shewed what they found upon examination and their Opinions thereupon Another Parliament in 31 H. 6. which Parliament begun the sixth of March and after it had continued sometime it was prorogued until the fourteenth of February and afterwards in Michaelmas Term anno 31 H. 6. Thomas Thorp the Speaker of the Commons House at the Suit of the Duke of Buckingham was condemned in the Exchequer in 1000 l. damages for a Trespass done to him The 14 of February the Commons moved in the Vpper House That their Speaker might be set at liberty to exercise his place The Lords refer this Case to the Iudges and Fortescue and Prisoit the two chief Iustices in the name of all the Iudges after sad consideration and mature deliberation had amongst them answered and said That they ought not to answer to this question for it hath not been used aforetime That the Iustices should in any wise determine the Priviledg of this High Court of Parliament for it is so high and mighty in its nature that it may make Laws and that that is Law it may make no Law and the determination and knowledg of that Priviledg belongeth to the Lords of the Parliament and not to the Iustices But as for proceedings in the lower Courts in such cases they delivered their Opinions And in 12 E. 4. 2. in Sir John Pastons case it is holden that every Court shall determine and decide the Priviledges and Customs of the same Court c. XXX Hillary Term 7 Jacobi Regis In the Star-Chamber Heyward and Sir Iohn Whitbrokes Case IN the Case between Heyward and Sir John Whitbroke in the Star-Chamber the Defendant was convicted of divers Misdemeanors and Fine and Imprisonment imposed upon him and damages to the Plaintiff and it was moved that a special Proces might be made out of that Court to levy the said damages upon the Goods and Lands of the Defendant and it was referred to the two chief Iustices whether any such Proces might be made who this Term moved the Case to the chief Baron and to the other Iudges and Barons and it was unanimously resolved by them That no such Proces could or ought to be made neither for the damages nor for the costs given to the Plaintiff for the Court hath not any power or Iurisdiction to do it but onely to keep the Defendant in prison until he pay them For for the Fine due to the King the Court of Star-Chamber cannot make forth any Proces for the levying of the
were meer Spirituall such a Defamation is not examinable before the high Commissioners As to the last Article It appeareth now by the Iudgment of this Court that he might well justifie the said words Also the high Commissioners shall not have Conusance of any Scandall to themselves for Judex non potest injuriam sibi datam punire Vi. the Stat. of 23 H. 8. c. 9. that they are parties and such Scandall is punishable by the Common Law as it was resolved in Hales Case which see in the Book of the Lord Dyers Reports and see in my Book of Presidents the Copy of the Indictment of Hales for scandaling of the Ecclesiasticall Commissioners Note the Bishop of Winchester being Visiter of the School of Winchester of the Foundation of Wickam Bishop of Winchester and the Bishop and Cant. and other his Colleagues An. 5 Car. cited the Vsher of the said School by force of the said Commission to appear before them and proceed there against him for which they incurred the danger of a Premunire And so did the Bishop of Canterbury and his Colleagues by force of a high Commission to them directed cite one Humphrey Frank Master of Arts and Schoolmaster of the School of Sevenock of the Foundation of Sir William Sevenock in the time of King Henry the sixth to appear before the high Commissioners at Lambeth the sixth day of December last past which citation was subscribed by Sir John Bennet Doctor of Law Doctor James and Doctor Hickman three of the high Commissioners and Sir Christopher Perkins procured the said Citation to be made and when the said Frank appeared the Archbishop being associated with Sir Christopher Perkins and Doctor Abbot Dean of Winchester made an Order concerning the said School scil That the said Frank shall continue in the said School untill the Annunciation and that he should have twenty pounds paid to him by Sir Ralph Bosoile Knight IV. Mich. 6 Jacobi Regis Taylor and Shoiles Case TAylor informed upon the Statute of 5 Eliz. cap. 4. Tam pro Domino Reg. quam pro seipso in the Exchequer That the Defendant had exercised the Art and Mystery of a Brewer c. and averreâ— that Shoile the Defendant did not use or exercise the Art or Mystery of a Brewer at the time of the making of the Act nor had been Apprentice by seven years at least according to the said Act c. The Defendant did demur in Law upon the Information and Iudgment was given against him by the Barons of the Exchequer And now in this Terme upon a Writ of Error the matter was argued at Serjeants-Inne before the two chief Iustices and two matters were moved The One That a Brewer is not within the said Branch of the said Act For the words are That it shall not be lawfull to any person or persons other then such as now lawfully use or exercise any Art Mystery or manuall Occupation to set up use or exercise any Art Mystery or manuall Occupation except he shall have been brought up therein seven years at the least as an Apprentice And it was said That the Trade of a Brewer is not any Art Mystery or manuall Occupation within the said Branch because the same is easily and presently learned and he needs not to have seven years Apprentiship to be instructed in the same for every Huswife in the Country can do the same and the Act of Henry the eighth is That a Brewer is not a Handycraft Artificer 2. It was moved That the said Averment was not sufficient for the Averment ought to be as generall as the exception in the Statute is scil That the Defendant did not use any Art Mystery or Occucupation at the time of the making of the same Act for by this pretence if any Art c. then as a Taylor Carpenter c. he may now exercise any other Art whatsoever As unto the first It was resolved That the Trade of a Brewer scil to hold a common Brewhouse to sell Beer or Ale to another is an Art and Mystery within the said Act for in the beginning of the Act It is enacted That no person shall be retained for lesse time then a whole year in any of the Services Crafts Mysteries or Arts of Cloathing c. Bakers Brewers c. Cooks c. So as by the judgment of the same Parliament The Trade of a Brewer is an Art and Mystery which words are in the said Branch upon which the said Information is grounded Also because that every Huswife brews for her private use so also she bakes and dresseth Meat And yet none can hold a common Bakehouse or a Cooks Shop to sell to others unlesse that he hath been an Apprentice c. for they are expresly named also in the Act as Arts and Mysteries And the Act of 22 H. 8. cap. 13. is explained That a Brewer Baker Surgeon and Scrivener Alien are not handycrafts mentioned within certain penall Lawes But the same doth not prove but that they are Arts or Mysterys for Art or Mystery is more generall then Handycrafts for the same is restrained to Manufactures As to the second Point It was resolved That the intention of the Act was That none should take upon him any Art but he who hath skill or knowledge in the same And therefore the Statute intendeth That he who useth any Art or Mystery at the time of the Act might use the same Art or Mystery for Quod quisque norit in hoc se exerceat And the words of the Act are As now do lawfully use c. And it was said That it was very necessary that Brewers should have knowledge and skill in brewing good and wholsome Beer and Ale for that the same doth greatly conduce to mens healths And so the first Iudgment was affirmed V. Mich. 6 Jacobi In the Common Pleas. The Case of Modus Decimandi SHerley Serjeant moved to have a Prohibition because that a person Tithes sued to have Tithes of Silva Cedua under twenty years growth in the Weild of Kent where by the Custome of it which is a great part of the County Tithes of any Wood was never paid And if such a Custome in non Decimando for all Lay people within the said Weild were lawfull or not was the question And to have a Prohibition it was said That although one particular man shall not prescribe in non decimando yet such a generall Custome within a great Country might well be as in 43 E. 3. 32. and 45 E. 3. Custome 15. It was presented in the Kings Bench That an Abbot had purchased Tenements after the Statute c. And the Abbot came and said That he was Lord of the Town c. And the custome of the Town was That when the Tenant cesseth for two years that the Lord might enter untill agreement be made for the Arrerages And that he who held these Tenements was his Tenant and cessed for two years and he entred and
CERTAIN SELECT CASES IN LAVV REPORTED BY Sir EDVVARD COKE Knight LATE Lord CHIEF JUSTICE OF ENGLAND And one of His Majesties Council of STATE Translated out of a Manuscript written with his own hand Never before Published With two Exact Tables the one of the Cases and the other of the Principal Matters therein contained LONDON Printed by Tho. Roycroft for J. Sherley H. Twyford and Tho. Dring and are to be sold at their Shops at the Pelican in Little-Brittain in Vine-Court Middle Temple and at the George in Fleetstreet 1659. TO THE READER READER IT may seem altogether an unnecessary work to say any thing in the praise and vindication of that Person and his Labours which have had no less then the generall approbation of a whole Nation convened in Parliament For if King THEODORICK in Cassiodore could affirme Neque enim dignus est a quopiam redargui qui nostro judicio meretur absolvi That no man ought to be reproved whom his Prince commends How much rather then should men forbear to censure those and their Works which have had the greatest allowance and attestation a Senate could give and to acquiesce and rest satisfied in that judgement Such respect and allowance hath been given to the learned Works of the late Honourable and Venerable Chiefe Justice Sir EDWARD COKE whose Person in his life time was reverenced as an Oracle and his Works since his decease cyted as Authentick Authorities even by the Reverend Judges themselves The acceptance his Books already extant have found with all knowing Persons hath given me the confidence to commend to the publick view some Remains of his under his owne hand-writing which have not yet appeared to the World yet like true and genuine Eaglets are well able to behold and bear the light They are of the same Piece and Woofe with his former Works and in respect of their owne native worth and the reference they bear to their Author cannot be too highly valued Though in respect of their quantity and number the Reports are but few yet as the skilfull Jeweller will not lose so much as the very filings of rich and precious mettals and the very fragments were commanded to be kept where a Miracle had been wrought Propter miraculi claritatem evidentiam So these small parcels being part of those vast and immense labours of their Author great almost to a Miracle if I may be allowed the comparison were there no other use to be made of them as there is very much for they manifest and declare to the Reader many secret and abstruse points in Law not ordinarily to be met with in other Books so fully and amply related deserve a publication and to be preserved in the respects and memories of Learned men and especially the Professors of the Law and to that end they are now brought to light and published If any should doubt of the truth of these Reports of Sir EDWARD COKE they may see the originall Manuscript in French written with his own hand at Henry Twyfords Shop in Vine-Court Middle Temple Farewell J. G. MICH. AN. 6 JACOBI REGIS In the Common Pleas. Willowes Case IN Trespasse brought by Richard Stallon one of the Attorneys of the Court against Thomas Bradye which began in Easter Copyhold Fine reasonable Term An. 6 Jacobi Rot. 1845. for breaking of his House and Close at Fenditton in the County of Cambridge And the new Assignment was in an Acre of Pasture The Defendant pleads that the place where c. was the Land and Freehold of Thomas Willowes and Richard Willowes and that he as Servant c. And the Plaintiff for Replication saith that the place where was parcell of the Mannor of Fenditton and demisable c. by Copy of Court-roll in Fee-simple And that the Lords of the Mannor granted the Tenements in which c. to John Stallon and his heirs who surrendred them unto the said Willowes and VVillowes Lords of the said Mannor to the use of the Plaintiff and his heirs who was admitted accordingly c. The Defendant doth rejoyn and saith That well and true it is that the Tenements in which c. were parcell of the Mannor and demisable c. And the surrender and admittance such pro ut c. But the said Thomas Bradye further saith that the Tenements in which c. at the time of the Admission of the said Richard Stallon were and yet are of the clear yearly value of fifty three shillings and four pence And that within the said Mannor there is such a Custome Quod rationabilis denariorum summa legalis monetae Angliae super quamlibet admissionem cujuslibet personae sive quarumcunque personarum tenent vel tenent per Dom. vel Dominos Manerii praedict sive per Seneschallum c. ad aliquas terras sive Tenementa Customaria Manerii praedict secundum Consuetudinem Manerii illius debetur a tempore quo c. debitum fuit Dom. c. tempore ejusdem admissionis pro sine pro admissione illa quod idem Dominus vel idem Dom. praedict vel Seneschallus suus Curiae ejusdem Manerii pro tempore existen usus fuit vel usi fuerunt per totum Tempus supradict in plena Curia Manerii illius pro Admissione ejusdem personae seu earundum personarum sic facta assidere appunctuare Anglice to Assesse and appoint eandem rationabilem denariorum summam pro fine pro eadem Admissione sic praefertur facta nec non superinde eandem denariorum summam sic assessam appunctuatam praefatae personae sive personis sic admissae sive admissis solveret solverent c. eidem Domino c. praedictam rationabilem denariorum summam pro fine pro Admissione sua praedict sic assessam appunctuat And further saith That the Steward of the said Mannor at a Court holden 1. Octob. in the fourth year of the Reigne of the King that now is admitted the Plaintiff to the Tenements in which c. and assessed and set a reasonable summ of money that is to say five pounds six shillings eight pence that is to say Valorem corundem tenementorum per duos annos non ultra pro fine pro praedict Admissione praedict Richard Stallon to the said Lords of the Mannor to be paid And also the said Steward at the same Court did give notice and signifie to the Plaintiff the said summ was to be paid to the said Lords of the Mannor c. And further saith that the said VVillowes and VVillowes afterwards that is to say the second day of November in the fourth year aforesaid at Fenditton aforesaid requested the said Richard Stallon to pay to them five pounds six shillings eight pence there for the Fine for his admittance c. which the said Rich. Stallon then and there utterly denied and refused and as yet doth refuse By which the said Richard Stallon forfeited to the aforesaid Thomas and Richard
Iudg of the Prerogative Dr. James Dr. Martin and divers other Doctors of the Civil and Canon Law came attending upon them to the King to Whitehall the Thursday Friday and Saturday after Easter-Term in the Councel-Chamber where the Cheif Iustice and I my self Daniel Iudg of the Common-Pleas and Williams Iudg of the Kings-Bench by the command of the King attended also where the King being assisted with his Privy Councel all sitting at the Councel-Table spake as a most gracious good and excellent Soveraign to this effect As I would not suffer any novelty or Innovations in my Courts of Iustice Ecclesiastical and Temporal so I will not have any of the Laws which have had judicial allowances in the times of the Kings of England before him to be forgotten but to be put in execution And for as much as upon the contentions between the Ecclesiastical and Temporal Courts great trouble inconvenience and loss may arise to the subjects of both parts namely when the controversie ariseth upon the jurisdiction of my Courts of ordinary Iustice and because I am the head of Iustice immediately under God and knowing what hurt may grow to my Subjects of both sides when no private case but when the Iurisdictions of my Courts are drawn in question which in effect concerneth all my Subjects I thought that it stood with the Office of a King which God hath committed to me to hear the controversies between the Bishops and other of his Clergy and the Iudges of the Laws of England and to take Order that for the good and quiet of his Subjects that the one do not encroach upon the other but that every of them hold themselves within their natural and local jurisdiction without encroachment or usurpation the one upon the other And he said that the onely question then to be disputed was If a Parson or a Vicar of a Parish sueth one of his Parish in the Spiritual Court for Tythes in kinde or Lay-fee and the Defendant alledgeth a custom or prescription De modo Decâ—mandi if that custom or prescription De modo Decimandi shall be tryed and determined before the Iudg Ecclesiastical where the Suit is begun or a Prohibition lyeth to try the same by the common Law And the King directed that we who were Iudges should declare the reasons and causes of our proceedings and that he would hear the authorities in the Law which we had to warrant our proceedings in granting of Prohibition in cases of Modo Decimandi But the Archbishop of Canterbury kneeled before the King and desired him that he would hear him and others who are provided to speak in the case for the good of the Church of England and the Archbishop himself inveighed much against two things 1. That a Modus Decimandi should be tryed by a Iury because that they themselves claim more or less modum Decimandi so as in effect they were Tryors in their own cause or in the like cases 2. He inveighed much the precipitate and hasty Tryals by Iuries and after him Doctor Bennet Iudg of the Prerogative Court made a large Invection against Prohibitions in Causis Ecclesiasticis and that both Iurisdictions as well Ecclesiastical as Temporal were derived from the King and all that which he spake out of the Book which Dr. Ridley hath lately published I omit as impertinent and he made five Reasons why they should try Modum Decimandi And the first and principal Reason was out of the Register fo 58. quia non est consonans rationi quod cognitio accessarii in Curia Christianitatis impediatur ubi cognitio Causae principalis ad forum Ecclesiasticum noscitur pertinere And the principal cause is Right of Tythes and the Plea of Modo Decimandi sounds in satisfaction of Tythes and therefore the Conusance of the original cause scil the Right of Tythes appertaining to them the Conusance of the bar of Tythes which he said was but the accessary and as it were dependant upon it appertained also to them And whereas it is said in the Bishop of VVinchesters Case in the second part of my Reports and 8 E. 4. 14. that they would not accept of any Plea in discharge of Tythes in the Spiritual Court he said that they would allow such Pleas in the Spiritual Court and commonly had allowed them and therefore he said that that was the Mystery of iniquity founded upon a false and feigned foundation and humbly desired the reformation of that Error for they would allow Modum Decimandi being duly proved before them 2. There was great inconveniency that Lay-men should be Tryers of their own Customs if a Modus Decimandi should be tryed by Iurors for they shall be upon the matter Iurors in their own cause 3. That the custom of Modo Decimandi is of Ecclesiastical Iurisdiction and Conusance for it is a manner of Tything and all manner of Tything belongs to Ecclesiastical Iurisdiction and therefore he said that the Iudges in their Answer to certain Objections made by the Archbishop of Canterbury have confessed that suit may be had in Spiritual Courts pro modo Decimandi and therefore the same is of Ecclesiastical Conusance and by consequence it shall be tryed before the Ecclesiastical Iudges for if the Right of Tythes be of Ecclesiastical Conusance and the satisfaction also for them of the same Iurisdiction the same shall be tryed in the Ecclesiastical Court 4. In the Prohibitions of Modus Decimandi averment is taken That although the Plaintiff in the Prohibition offereth to prove Modum Decimandi the Ecclesiastical Court doth refuse to allow of it which was confessed to be a good cause of Prohibition But he said they would allow the Plea De Modo Decimandi in the Spiritual Court and therefore cessante causa cessabit effectus and no Prohibition shall lie in the Case 5. He said that he can shew many consultations granted in the cause De Modo Decimandi and a Consultation is of greater force then a Prohibition for Consultation as the word imports is made with the Court with consultation and deliveration And Bacon Solicitor-General being as it is said assigned with the Clergy by the King argued before the King and in effect said less then Doctor Bennet said before but he vouched 1 R. 3. 4. the Opinion of Hussey when the Original ought to begin in the Spiritual Court and afterwards a thing cometh in issue which is tryable in our Law yet it shall be tryed by their Law As if a man sueth for a Horse devised to him and the Defendant saith that the Devisor gave to him the said Horse the same shall be tryed there And the Register 57 and 58. If a man be condemned in Expences in the Spiritual Court for laying violent hands upon a Clark and afterwards the Defendant pays the costs and gets an Acquittance and yet the Plaintiff sueth him against his Acquittance for the Costs and he obtains a Prohibition for that Acquittances and Deeds
are to be determined in our Law he shall have a Consultation because that the principal belongeth to them 38 E. 3. 5. Right of Tythes between two spiritual persons shall be determined in the Ecclesiastical Court And 38 E. 3. 6. where the Right of Tythes comes in debate between two spiritual persons the one claiming the Tythes as of common Right within his Parish and the other claiming to be discharged by real composition the Ecclesiastical Court shall have Iurisdiction of it And the said Iudges made humble suit to the King That for as much as they perceived that the King in his Princely Wisdom did detest Innovations and Novelties that he would vouchsafe to suffer them with his gracious favor to inform him of one Innovation and Novelty which they conceived would tend to the hinderance of the good administration and execution of Iustice within his Realm Your Majesty for the great zeal which you have to Iustice and for the due administration thereof hath constituted and made fourteen Iudges to whom you have committed not onely the administration of Ordinary Iustice of the Realm but crimina laesae Majestatis touching your Royal person for the legal proceeding also in Parliament we are called by Writ to give to your Majesty and to the Lords of the Parliament our advice and counsel when we are required We two chief Iustices sit in the Star-Chamber and are oftentimes called into the Chancery Court of Wards and other High Courts of Iustice we in our Circuits do visit twice in the year your Realm and execute Iustice according to your Laws and if we who are your publique Iudges receive any diminution of such reverence and respect in our places which our predecessors had we shall not be able to do you such acceptable service as they did without having such reverence and respect as Iudges ought to have The state of this Question is not in statu deliberativo but in statu judiciali it is not disputed de bono but de vero non de Lege fienda sed de Lege lata not to frame or devise new Laws but to inform your Majesty what your Law of England is and therefore it was never seen before that when the Question is of the Law that your Iudges of the Law have been made Disputants with him who is inferior to them who day by day plead before them at their several Courts at Westminster and although we are not afraid to dispute with Mr. Bennet and Mr. Bacon yet this example being primae impressionis and your Majesty detesting Novelties and innovations we leave it to your Grace and Princely consideration whether your Majesty will permit our answering in hoc statu judiciali upon your publique Iudges of the Realm But in Obedience to your Majesties command We with your Majesties gracious favor in most humble manner will inform your Majesty touching the said Question which we and our predecessors before us have oftentimes adjudged upon judicial proceedings in your Courts of Iustice at Westminster which Iudgments cannot be reversed or examined for any Error in Law if not by a Writ of Error in a more high and supream Court of Iustice upon legal and judicial proceedings and that is the ancient Law of England as appeareth by the Statute of 4 H. 4. cap. 22. And we being commanded to proceed all that which was said by us the Iudges was to this effect That the Tryal De Modo Decimandi ought to be by the Common Law by a Iury of twelve men it appeareth in three manners First by the Common Law Secondly by Acts of Parliament And lastly by infinite judgments and judicial proceedings long times past without any impeachment or interruption But first it is to see What is a Modus Decimandi Modus Decimandi is when Lands Tenements or Hereditaments have been given to the Parson and his successors or an annual certain sum or other profit always time out of minde to the Parson and his successors in full satisfaction and discharge of all the Tythes in kinde in such a place and such manner of Tything is now confessed by the other party to be a good bar of Tythes in kinde I. That Modus Decimandi shall be tryed by the Common Law that is that all satisfactions given in discharge of Tythes shall be tryed by the Common Law and therefore put that which is the most common case That the Lord of the Mannor of Dale prescribes to give to the Parson 40 s. yearly in full satisfaction and discharge of all Tythes growing and renewing within the Mannor of Dale at the Feast of Easter The Parson sueth the Lord of the Mannor of Dale for his Tythes of his Mannor in kinde and he in Bar prescribes in manner ut supra The Question is if the Lord of the Mannor of Dale may upon that have a Prohibition for if the Prohibition lyeth then the Spiritual Court ought not to try it for the end of the Prohibition is That they do not try that which belongs to the Tryal of the Common Law the words of the Prohibition being that they would draw the same ad aliud examen First the Law of England is divided into Common-Law Statute-Law and Customs of England and therefore the Customs of England are to be tryed by the Tryal which the Law of England doth appoint Secondly Prescriptions by the Law of the Holy Church and by the Common Law differ in the times of limitation and therefore Prescriptions and Customs of England shall be tryed by the Common Law See 20 H. 6. fo 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Archdeacon of Surry and declared how that he and his successors were seised by the hands of the Defendant by title of Prescription and the Defendant demanded Iudgment if the Court would hold Iurisdiction being between spiritual persons c. Stone Iustice Be assured that upon title of prescription we will here hold Iurisdiction and upon that Wilby chief Iustice gave the Rule Answer Vpon which it follows that if a Modus Decimandi which is an annual sum for Tythes by prescription comes in debate between spiritual persons that the same shall be tryed here For the Rule of the Book is general scil upon title of prescription we will hold Iurisdiction and that is fortified with an Asseveration Know assuredly as if he should say that it is so certain that it is without question 32 E. 3. Jurisd 26. There was a Vicar who had onely Tythes and Oblations and an Abbot claimed an Annuity or Pension of him by prescription and it was adjudged that the same prescription although it was betwixt spiritual persons should be tryed by the Common Law Vide 22 H. 6. 46. and 47. A prescription that an Abby time out of minde had found a Chaplain in his Chappel to say Divine Service and to minister Sacraments tryed at the Common Law 3. See the Record of 25 H. 3. cited
in the case of Modus Decimandi before and see Register fo 38. when Lands are given in satisfaction and discharge of Tythes 4. See the Statute of Circumspecte agatis Decimae debitae seu consuetae which proves that Tythes in kinde and a Modus by custom c. 5. 8 E. 4. 14. and Fitz. N. B. 41. g. A Prohibition lieth for Lands given in discharge of Tythes 28 E. 3. 97. a. There Suit was for Tythes and a Prohibition lieth and so abridged by the Book which of necessity ought to be upon matter De Modo Decimandi or discharge 7. 7 E. 6. 79. If Tythes are sold for mony by the sale the things spiritual are made temporal and so in the case De modo Decimandi 42 E. 3. 12. agrees 8. 22 E. 3. 2. Because an Appropriation is mixt with the Temporalty scil the Kings Letters Patents the same ought to be shewed how c. otherwise of that which is meer Temporal and so it is of real composition in which the Patron ought to joyn Vide 11 H. 4. 85. Composition by writing that the one shall have the Tythes and the other shall have mony the Suit shall be at the Common Law Secondly By Acts of Parliament 1. The said Act of Circumspecte agatis which giveth power to the Ecclesiastical Iudg to sue for Tythes due first in kinde or by custom i. e. Modus Decimandi so as by authority of that Act although that the yearly sum soundeth in the Temporalty which was payd by Custom in discharge of Tythes yet because the same cometh in the place of Tythes and by constitution the Tythes are changed into mony and the Parson hath not any remedy for the same which is the Modus Decimandi at the Common Law for that cause the Act is clear that the same was a doubt at the Common Law And the Statute of Articuli Cleri cap. 1. If corporal pennance be changed in poenam pecuniariam for that pain Suit lieth in the Spiritual Court For see Mich. 8 H. 3. Rot. 6. in Thesaur A Prohibition lieth pro eo quod Rector de Chesterton exigit de Hagone de Logis de certa portione pro Decimis Molendinarium so as it appeareth it was a doubt before the said Statute if Suit lay in the Spiritual Court de Modo Decimandi And by the Statute of 27 H. 8. cap. 20. it is provided and enacted That every of the subjects of this Realm according to the Ecclesiastical Laws of the Church and after the laudable usages and customs of the Parish c. shall yield and pay his Tythes Offerings and other duties and that for substraction of any of the said Tythes offerings or other duties the Parson c. may by due Proces of the Kings Ecclesiastical Laws convent the person offending before a competent Iudg having authority to hear and determine the Right of Tythes and also to compel him to yeild the Duties i. e. as well Modus Decimandi by laudable usage or Custom of the Parish as Tythes in kinde and with that in effect agrees the Statute of 32 H. 8. cap. 7. By the Statute of 2 E. 3. cap. 13. it is enacted That every of the Kings Subjects shall from henceforth truly and justly without fraud or guile divide c. and pay all manner of their predial Tythes in their proper kinde as they rise and happen in such manner and form as they have been of Right yielded and payd within forty years next before the making of this Act or of Right or Custom ought to have been payd And after in the same Act there is this clause and Proviso Provided always and be it enacted That no person shall be sued or otherwise compelled to yield give or pay any manner of Tythes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any priviledg or prescription are not chargeable with the payment of any such Tythes or that be discharged by any compositions real And afterwards there is another Branch in the said Act And be it further enacted That if any person do substract or withdraw any manner of Tythes Obventions Profits Commodities or other Duties before mentioned which extends to Custom of Tything i. e. Modus Decimandi mentioned before in the Act c. that then the party so substracting c. may be convented and sued in the Kings Ecclesiastical Court c. And upon the said Branch which is in the Negative That no person shall be sued for any Tythes of any Lands which are not chargeable with the payment of such Tythes by any Law Statute Priviledg Prescription or Real Composition And always when an Act of Parliament commands or prohibits any Court be it Temporal or Spiritual to do any thing temporal or spiritual if the Statute be not obeyed a Prohibition lieth as upon the Statute de articulis super Cartas ca. 4. Quod Communia Placita non tenentur in Scaccario a Prohibition lieth to the Court of Exchequer if the Barons hold a Common-Plea there as appeareth in the Register 187. b. So upon the Statute of West 2. Quod inquisitiones quae magnae sunt examinationis non capiantur in patria a Prohibition lieth to the Iustices of Nisi Prius So upon the Statute of Articuli super Cartas cap. 7. Quod Constabularius Castr Dover non teneat Placitum forinsecum quod non tangit Custodiam Castri Register 185. So upon the same Statute cap. 3. Quod See Lib. Entr. 450. a Prohibition was upon the Statute that one shall not maintain and so upon every penal Law See F. N. B 39. b. Prohibition to the Common Pleas upon the Stat. of Magna Charta that they do not proceed in a Writ of Praecipe in Capite where the Land is not holden of the King 1 2 Eliz. Dy. 170 171. Prohibition upon the Statute of barrenes and pettit is onely prohibited by implication Senescallus Mariscallus non teneant Placita de libero tenemento de debito conventione c. a Prohibition lieth 185. And yet by none of these Statutes no Prohibition or Supersedeas is given by express words of the Statute So upon the Statutes 13 R. 2. cap. 3. 15 R. 2. cap. 2. 2 H. 4. cap. 11. by which it is provided That Admirals do not meddle with any thing done within the Realm but onely with things done upon the Seas c. a Prohibition lieth to the Court of Admiralty So upon the Statute of West 2. cap. 43. against Hospitalers and Templers if they do against the same Statute Regist 39. a. So upon the Statute de Prohibitione regia Ne laici ad citationem Episcopi conveniant ad recognitionem faciend vel Sacrament praestanda nisi in casubus matrimonialibus Testamentariis a Prohibition lieth Regist 36. b. And so upon the Statute of 2 H. 5. cap. 3. at what time the Libel is grantable by the Law that it be granted and
delivered to the party without difficulty if the Ecclesiastical Iudg when the cause which depends before him is meer Ecclesiastical denyeth the Libel a Prohibition lieth because that he doth against the Statute and yet no Prohibition by any express words is given by the Statute And upon the same Statute the Case was in 4 E. 4. 37. Pierce Peckam took Letters of Administration of the Goods of Rose Brown of the Bishop of London and afterwards T. T. sued to Thomas Archbishop of Canterbury That because the said Rose Brown had Goods within his Diocess he prayed Letters of Administration to be committed to him upon which the Bishop granted him Letters of Administration and afterwards T. T. libelled in the Spiritual Court of the Archbishop in the Arches against Pierce Peckam to whom the Bishop of London had committed Letters of Administration to repeal the same and Pierce Peckam according to the said Statute prayed a Copy of the Libel exhibited against him and could not have it and thereupon he sued a Prohibition and upon that an Attachment And there Catesby Serjeant moved the Court that a Prohibition did not lie for two causes 1. That the Statute gives that the Libel shall be delivered but doth not say that the Plea in the Spiritual Court shall surcease by Prohibition 2. The Statute is not intended of matter meer spiritual as that case is to try the Prerogative and the Liberty of the Archbishop of Canterbury and the Bishop of London in committing of Administrations And there Danby Chief Iustice If you will not deliver the Libel according to the Statute you do wrong which wrong is a temporal matter and punishable at the Common Law and therefore in this case the party shall have a special Prohibition out of this Court reciting the matter and the Statute aforesaid commanding them to surcease until he had the Copy of the Libel delivered unto him which case is a stronger case then the case at the Bar for that Statute is in the Affirmative and the said Act of 2 E. 6. cap. 13. is in the Negative scil That no Suit shall be for any Tythes of any Land in kinde where there is Modus Decimandi for that is the effect of the said Act as to that point And always after the said Act in every Term in the whole Reigns of King E. 6. Queen Mary and Queen Elizabeth until this day Prohibitions have been granted in Causa Modi Decimandi and Iudgments given upon many of them and all the same without question made to the contrary And accordingly all the Iudges resolved in 7 E. 6. Dyer 79. Et contemporanea expositio est optima fortissima in lege a communi observantia non est recedendum minime mutanda sunt quae certam habuerunt interpretationem And as to the first Objection That the Plea of Modus Decimandi is but accessary unto the Right of Tythes it was resolved that the same was of no force for three causes 1. In this case admitting that there is Modus Decimandi then by the Custom and by the Act of 2 E. 6. and the other Acts the Tythes in kinde are extinct and discharged for one and the same Land cannot be subject to two manner of Tythes but the Modus Decimandi is all the Tythe with which the Land is chargeable As if a Horse or other thing valuable be given in satisfaction of the Duty the Duty is extinct and gone and it shall be intended that the Modus Decimandi began at the first by real composition by which the Lands were discharged of the Tythes and a yearly sum in satisfaction of them assigned to the Parson c. So as in this case there is neither Principal nor Accessary but an Identity of the same thing 2. The Statute of 2 E. 6. being a Prohibition in it self and that in the Negative If the Ecclesiastical Iudg doth against it a Prohibition lieth as it appeareth clearly before 3. Although that the Rule be general yet it appeareth by the Register it self that a Modus Decimandi is out of it for there is a Prohibition in Causa Modi Decimandi when Lands are given in satisfaction of the Tythes As to the second Objection it was answered and resolved That that was from or out of the Question for status Quaestionis non est deliberativus sed judicialis what was fit and convenient but what the Law is and yet it was said It shall be more inconvenient to have an Ecclesiastical Iudg who is not sworn to do Iustice to give sentence in a case between a man of the Clergy and a Lay-man then for twelve men sworn to give their Verdict upon hearing of Witnesses viva voce before an indifferent Iudg who is sworn to do Right and Iustice to both parties But convenient or inconvenient is not the Question Also they have in the Spiritual Court such infinite exceptions to Witnesses that it is at the Will of the Iudg with which party he shall give his sentence As to the third Objection it was answered and resolved First That satisfactio pecuniaria of it self is Temporal But for as much as the Parson hath not remedy pro Modo Decimandi at the Common Law the Parson by force of the Acts cited before might sue pro Modo Decimandi in the Ecclesiastical Court but that doth not prove That if he sueth for Tythes in kinde which are utterly extinct and the Land discharged of them that upon the Plea de Modo Decimandi that a Prohibition should not lie for that without all question appeareth by all that which before hath been said that a Prohibition doth lie See also 12 H. 7. 24. b. Where the original cause is Spiritual and they proceed upon a Temporal a Prohibition lieth See 39 E. 3. 22 E. 4. Consultation That Right of Tythes which is meerly Ecclesiastical yet if the question ariseth of the limits of a Parish a Prohibition lieth and this case of the limits of a Parish was granted by the Lord Chancellor and not denyed by the other side As to the Objection That an Averment is taken of the refusal of the Plea de Modo Decimandi it was answered and resolved That the same is of no force for divers causes 1. It is onely to inforce the contempt 2. If the Spiritual Court ought to have the Tryal de Modo Decimandi then the refusal of acceptance of such a Plea should give cause of Appeal and not of Prohibition as if an Excommunication Divorce Heresie Simony c. be pleaded there and the Plea refused the same gives no cause of Prohibition as if they deny any Plea meer spiritual Appeal and no Prohibition lieth 3. From the begining of the Law no Issue was ever taken upon the refusal of the plea in Causa Modi Decimandi nor any Consultation ever granted to them because they did not refuse but allowed the plea. 4. The refusal is no part of the matter issuable or material in
of Iustice And this was the end of these three days consultations And note That Dr. Bennet in his discourse inveighed much against the opinion in 8 E. 4. 14. and in my Reports in Wrights Case That the Ecclesiastical Iudg would not allow a Modus Decimandi and said That that was the mystery of iniquity and that they would allow it And the King asked for what cause it was so said in the said Books To which I answered that it appeareth in Linwood who was Dean of the Arches and of profound knowledg in the Canon and Civil Law and who wrote in the Reign of King Henry the sixth a little before the said Case in 8 E. 4. in his title de Decimis cap. Quoniam propter c. fo 139. b. Quod Decimae solvantur c. absque ulla diminutione and in the gloss it is said Quod Consuetudo de non Decimando aut de non bene Decimando non valet And that being written by a great Canonist of England was the cause of the said saying in 8 E. 4. that they would not allow the said plea de Modo Decimandi for always the Modus Decimandi is lesse in value then the Tithes in specie and then the same is against their Canon Quod decimae solvantur absque diminutione quod consuetudo de non plene Decimando non valet And it seemed to the King that that Book was a good Cause for them in the time of King Edward the fourth to say as they had said but I said That I did not relie upon that but upon the grounds aforesaid scil The common Law Statute-Laws and the continuall and infinite judgements and judiciall proceedings and that if any Canon or Constitution be against the same such Canon and Constitution c. is void by the Statute of 25. H. 8. Cap. 19. which see and note For all Canons Constitutions c. against the Prerogative of the King the common Laws Statutes or Customs of the Realm are void Lastly the King said That the high Commission ought not to meddle with any thing but that which is enormious and exorbitant and cannot permit the ordinary Proces of the Ecclesiasticall Law and which the same Law cannot punish And that was the cause of the institution of the same Commission and therefore although every offence ex vi termini is enormious yet in the Statute it is to be intended of such an offence is extra omnem normam as Heresie Schisme Incest and the like great offences For the King said That it was not reason that the high Commission should have conusance of common offences but to leave them to Ordinaries scil because that the party cannot have any appeal in case the high Commisson shall determine of it And the King thought that two high Commissions for either Province one should be sufficient for all England and no more XV. Mich. 39 and 40 Eliz. in the Kings Bench. Bedell and Shermans Case MIch 39 and 40 Eliz. which is entred Mich. 40 Eliz. in the com-Pleas Rot. 699 Cantabr the Case was this Robert Bedel Gent. and Sarah his wife Farmors of the Rectory of Litlington in the County of Cambridge brought an Action of Debt against John Sherman in the custody of the Marshall of the Marshalsey and demanded 550 l. And declared that the Master and Fellows of Clare-Hall in Cambridge were seised of the said Rectory in fee in right of the said Colledge and in June 10. 29 Eliz. by Indenture demised to Christopher Phesant the said Rectorie for 21 years rendering 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute c. which Rent was the ancient Rent who entred into the said Rectory and was possessed and assigned all his interest thereof to one Matthew Batâ— who made his last Will and Testament and made Sarah his wife his Executrix and died Sarah proved the Will and entred and was thereof possessed as Executrix and took to husband the said Robert Bedel by force whereof they in the Right of the said Sarah entred and were possessed thereof and that the Defendant was then Tenant and seised for his life of 300 acres of arable Lands in Litlington aforesaid which ought to pay Tithes to the Rector of Litlington and in anno 38 Eliz. the Defendant grano seminavit 200 acres parcel c. And that the Tithes of the same did amount to 150 l. and that the Defendant did not divide nor set forth the same from the 9 parts but took and carried them away against the form and effect of the Statute of 2 E. 6 c. And the Defendant pleaded Nihil debet and the Iury found that the Defendant did owe 55 l. and to the residue they found Nihil debet c. and in arrest of Iudgement divers matters were moved 1. That grano seminata is too generall and incertain but it ought to be expressed with what kinde of corn the same was sowed 2. It was moved If the Parson ought to have the treble value the forfeiture being by expresse words limited to none by the Act or that the same did belong to the Queen 3. If the same did belong to the Parson if he ought to sue for the same in the Ecclesiasticall Court or in the Kings Temporall Court 4. If the husband and wife should joyn in the Action or the husband alone should have the Action and upon solemn argunent at the Barre and at the Bench the Iudgement was affirmed XVI Trinity Term 7 Jocob in the Court of Wards John Bailies Case IT was found by Writ of Diem clausit extremum That the said John Bailie was seised of a Messuage or Tenement and of and in the fourth part of one acre of land late parcel of the Demesne lands of the Mannor of Newton in the County of Hereford in his Demesne as of fee and found the other points of the Writ and it was holden by the two chief Iustices and the chief Barons 1. That Messuagium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain land or any thing which is holden 2. It was holden that is was void for the whole because that no Town is mentioned in the Office where the Messuage or Tenement or the fourth part of the acre lieth and from the Visne of the Mannor upon a Traverse none can come because it is not affirmed by by the Office that they are parcel of the Mannor but Nuper parcel of the Mannor which implieth that now they are not and it was holden by them that no Melius inquirendum shall issue forth because that the whole Office is incertain and void XVII Trinity 7 Jacobi Regis in the Court of Wards THe Attorney of the Court of Wards moved the two chief Iustices and chief Baron in this Case That a man seised of lands in fee-simple covenants for the advancement of his son and of his name and blood and posterity that he will stand seised