shillings eight pence for the Admittance of a Copyholder in Fee-simple upon a Surrender made For this is not like to a voluntary Grant as when the Copyholder hath but an Estate for life and dieth Or if he hath an Estate in Fee-simple and committeth Felony there Arbitrio Dom. res estimari debet but when the Lord is compellable to admit him to whose use the Surrender is And when Cestui que use is admitted he shall be in by him who made the Surrender and the Lord is but an Instrument to present the same And therefore in such Case the value of two years for such an Admittance is unreasonable especially when the value of the Cottage and one acre of Pasture is a Rack at fifty three shillings by the year 5. It was resolved That the Surjoynder is no more then what the Law saith For in this Case in the Iudgment of the Law the Fine is unreasonable and therefore the same is but ex abundanti and now the Court ought to judge upon the whole speciall matter And for the Causes aforesaid Iudgment was given for the Plaintiff And Coke chief Iustice said in this Case That where the usage of the Court of Admiralty is to amerce the Defendant for his default by his discretion as it appeareth in 19 H. 6. 7. That if the Amerciament be outrageous and excessive the same shall not bind the party and if it be excessive or not it shall be determined in the Court in which the Action shall be brought for the levying of it And the Writ of Account is against the Bayliff or Guardian Quod reddat ei rationabilem Computum de exitibus Manerii And the Law requireth a thing which is reasonable and no excesse or extremity in any thing II. Mich. 6 Jacobi in the Common Pleas. Porter and Rochesters Case THis Term Lewis and Rochester who dwelt in Essex within the The Statute of 23 H 8. of citing out of Dioces Dioces of London were sued for substraction of Tithes growing in B. within the County of Essex by Porter in the Court of the Arches of the Bishop of Canterbury in London And the Case was That the Archbishop of Canterbury hath a peculiar Iurisdiction of fourteen Parishes called a Deanry exempted from the Authority of the Bishop of London whereof the Parish of S. Mary de Arcubus is the Chief And the Court is called the Arches because the Court is holden there And a great question was moved If in the said Court of Arches holden in London within his Peculiar he might cite any dwelling in Essex for substraction of Tithes growing in Essex Or if he be prohibited by the Statute of the twenty third year of King Henry the eighth cap. 9. And after that the matter was well debated as well by Councell at the Bar as by Dr. Ferrard Dr. James and others in open Court and lastly by all the Iustices of the Common Pleas A Prohibition was granted to the Court of Arches And in this Case divers Points were resolved by the Court. 1. That all Acts of Parliament made by the King Lords and Commons of Parliament are parcell of the Laws of England and therefore shall be expounded by the Iudges of the Laws of England and not by the Civilians and Commonists although the Acts concern Ecclesiasticall and Spirituall Iurisdiction And therefore the Act of 2 H. 4. cap. 15. by which in effect it is enacted Quod nullus teneat doceat informet c. clam vel publice aliquam nefandam opinionem contrariam sidei Catholicae seu determinationi Ecclesiae sacro-sanctae nec de hujusmodi secta nephandis Doctrinis Conventiculas faciat And that in such Cases the Diocessan might arrest and imprison such Offender c. And in 10 H. 7. the Bishop of London commanded one to be imprisoned because that the Plaintiff said that he ought not to pay his Tithes to his Curat and the party so imprisoned brought an Action of False Imprisonment against those who arrested him by the commandment of the Bishop and there the matter is well argued What words are within the said Statute and what without the Statute So upon the same Statute it was resolved in 5 E. 4. in Keysars case in the Kings Bench which you may see in my Book of Presidents And so the Statutes of Articuli Cleri de Prohibitione regia De Circumspecte agatis of 2 E. 6. cap. 13. and all other Acts of Parliament concerning Spirituall Causes have alwaies been expounded by the Iudges of the Common Law as it was adjudged in Woods Case Pasch 29 Eliz. in my Notes fol. 22. So the Statute of 21 H. 8. cap. 13. hath been expounded by the Iudges of the Realm concerning Pluralities and the having of two Benefices Common Laws and Dispensations see 7 Eliz. Dyer 233. The Kings Courts shall adjudge of Dispensations and Commendams See also 17 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dyer 327 18 Eliz. Dyer 352. and 347. 22 Eliz. Dyer 377. Construction of the Statute cap. 12. Smiths Case concerning Subscription which is a meer Spirituall thing Also it appeareth by 22 Eliz. Dyer 377. That for want of subscription the Church was alwaies void by the said Act of 23 Eliz. and yet the Civilians say that there ought to be a Sentence Declaratorie although that the Act maketh it void 2. It was resolved by Coke chief Iustice Warberton Daniel and Foster Iustices That the Archbishop of Canterbury is restrained by the Act of 23 H. 8. cap. 9. to cite any one out of his own Diocesse or his Peculiar Iurisdiction although that he holdeth his Court of Arches within London And first it was objected That the Title of the Act is An Act that no person shall be cited out of the Diocess where he or she dwelleth except in certain Cases And here the Archbishop doth not cite the said Party dwelling in Essex out of the Diocesse of London for he holdeth his Court of Arches within London 2. The Preamble of the Act is Where a great number of the Kings Subjects dwelling in divers Diocesses c. And here he doth not dwell in divers Diocesses 3. Far out of the Diocesse where such men c. dwell and here he doth not dwell far out c. 4. The body of the Act is No manner of person shall be cited before any Ordinance c. out of the Diocesse or peculiar Iurisdiction where the person shall be inhabiting c. And here he was not cited out of the Dioces of London To which it was answered and resolved That the same was prohibited by the said Act for divers Causes 1. As to all the said Objections One answer makes an end of them all For Diocesis dicitur distinctio vel divisio sive gubernatio quae divisa diversa est ab Ecclesia alterius Episcopatus Commissa Gubernatio in unius and is derived a Diâ— quod est duo electio id est
Curia nostra non alibi tractari sicut praedict est cedere poterit attentetis sive attentim faciatis quovismodo By which also it appeareth That Tithes may be discharged and that the matter of discharge ought to be determined by the Common Law and not in the Spirituall Court And it is to be observed That in the said Iudgment nor in the Register any averment is taken of the value of the thing given in satisfaction of the Tithes Also by the Act of Circumspecte agatis made 13 E. 1. It is said S. Rector petat versus parochianos oblationes decimas debitas seu consuetas c. which proves that there are Tithes due in kind and other Tithes due by Custome as a Modus Decimandi c. And yet it is resolved in 19 E. 3. Jurisdiction 28. That the Ordinance of Circumspecte agatis is not a Statute and that the Prelates made the same and yet then the Prelates acknowledged That there were Tithes due by Custome which is a Modus Decimandi By which it appeareth also That Tithes by Custome may be altered into another thing So where a man grants a parcel of his Mannor to a Parson in Fee to be quit of Tithes and makes an Indenture and the Parson with the assent of the Ordinary without the Patron grants to him that he shall be quit of Tithes of his Mannor for that parcell of Land Afterwards if he or his Assignee be sued in the Spirituall Court for Tithes of his Mannor he or his Assignee shall have a Prohibition upon that Deed. And if that Deed was made before time of memory and he hath so continued to be quit of Tithes he shall have a Prohibition upon that Deed if he be sued for the Tithes of that Mannor or of any parcell of the same upon that matter shewed See 8 E. 4. 14. F. N. B. 41. g. vi 3. E. 3. 17. 16 E. 3. t. Annuity 24. 40 E. 3. 3. b. and F. N. B. 152. And therefore if the Lord of a Mannor hath alwaies holden his Mannor discharged of tithes and the Parson had before time of memory or in ancient times divers Lands in the same Parish of the Gift of the Lord of which the Parson is seised at this day in Fee in respect of which the Parson nor any of his Predecessors ever had received any tithes of the said Mannor If the Parson now sueth for tithes of the Mannor the Owner of the Mannor may shew that speciall matter and that the Parson and his Successors time out of mind have holden those Lands c. of the Gift of one who was Lord of the said Mannor in full satisfaction of the tithes of the said Mannor And the proof that the Lord of the Mannor gave the Lands that tithes should never be paid at this day is good evidence to prove the surmise of the Prohibition And so of the like and 19 E. 3. t. Jurisdiction 28. it is adjudged That Title of Prescription shall be determined in the Kings Court And therefore a Modus Decimandi which accrueth by Custome and Prescription in the Kings Court And it appeareth by the Statute of 6 H. 4. cap. 6. That the Pope by his Bulls discharged divers from payment of tithes against which the Act of Parliament was made and by the Statute of 31 H. 8. cap. 13. That the Possessions of Religious persons given to the King were discharged of payment of tithes in certain Cases and by the Statute of 32 H. 8. cap. 7. it is provided That all and singular persons shall divide set out yeild and pay all and singular tithes and Offerings aforesaid according to the lawfull customes and usages of the Parishes and places where such tithes or Duties shall come or immediatly arise or be due Provided alwaies and be it enacted That no person or persons shall be sued or otherwise compelled to pay any manner of tithes for any Mannors Lands Tenements or Hereditaments which by the Laws or Statutes of this Realm are discharged or not chargable with the payment of any such tithes And the Statute of 2 E. 6. cap. 13. Enacts That every of the Kings Subjects shall from henceforth justifie and truly without fraud or guile divide set out c. all manner of their prediall tithes in their proper kind as they will rise and happen in such manner and form as hath been of right yeilded and paid within forty years next before the making of this Act or of Right or Custome ought to be paid So as it appeareth by this that tithe is due of Right and by Custom And also in the same Act there is a Proviso in these words Provided alwaies and be it enacted That no person shall be sued or otherwise compelled to yeild give or pay any manner of tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledge or Prescription are not chargable with the payment of any such tithes or that he discharged by any composition reall so as it appeareth by that Act that one may be discharged from the payment of tithes five manner of waies 1. By the Law of the Realm that is the Common Law As Tithes shall not be paid of Coals Quarries Brick Tiles c. F. N. B 53. and Register 54 Nor of the after Pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2. By the Statutes of the Realm As by the Statute of 31 H. 8. cap. 13. the Statute of 45 E. 3. c. 3. By Priviledge as those of S. Johns of Jerusalem in England The Cistertians Temptors c. as it appeareth by 10 H. 7. 277. Dyer 4. By Prescription As by Modus Decimandi or an annuall Recompence in satisfaction of them as appeareth before by the Authorities aforesaid 5. By reall Composition as appeareth by the said Writ cited out of the Register And so you have one or two examples for many others which may be added of these five manners of discharges of Tithes And by them all it appeareth That a man may be discharged of the payment of Tithes as before is said So as now it apparently appeareth by the Laws of England both Ancient and Modern That a Lay-man ought prescribe in modo Decimandi but not in non Decimando and that in effect agrees with the Opinion of Thomas Aquinas in his Secunda secundae Quaest 86. ar ultimo For there he saith Quod in veteri lege praeceptum de solutione Decimarum partim erat morali inditum ratione naturali quae dictat Quod iis Qui Divino Cultui ministrant ad salutem totius populi necessaria victui debent ministr juxta illud 1 Cor. 9. Quis militat c. Who goeth to War at his own charges c. Partim autem erat judiciale ex Divina institutione robur habens scil Quantum ad determinationem certae partis And all that
agrees with our Law And he goeth further In tempore vero Novae Legis etiam est determinatio partis solvendae authoritate Ecclesiae That is by their Canons Instituta secundum quandam humanitatem ut scilicet non minus populus Novae Legis Ministros novi Testamenti exuberat quam populus veteris Legis ministris veteris Testamenti exhibebat praesertim cum Ministri Novae Legis sunt Majores Dignitate ut probat Apostolus 2 Cor. 3. Sic ergo patet Quod ad solutionem Decimarum tenentur homines partim quidem ex jure naturali quantum ad hoc quod aliqua portio data est ministris Ecclesiae partim vero ex institutione Ecclesiae quantum ad determinationem Decimae Partis See Doctor and Student Lib. 2. cap. 55. fol. 164. That the tenth part is not due by the Law of God nor by the Law of Nature which he calleth the Law of Reason And he citeth John Gerson who was a Doctor of Divinity in a Treatise which he calleth Regulae morales scil Solutio Decimaram sacerdotibus est de jure Divino quatenus inde sustententur sed quo ad tam hanc vel illam assignare aut in alios redditus Commutare positivi juris est And afterwards Non vocatur Portio Curatis debita propterea Decimae eo quod est Decima pars imo est interdum vicesima aut tricesima And he holdeth That a Portion is due by the Law of Nature which is the Law of God but it appertaineth to the Law of Man to assign Hanc vel illam portionem as necessity requireth for their Sustenance And further he saith That Tithes may be exchanged into Lands Annuity or Rent which shall be sufficient for the Minister c. And there he saith That in Italy and in other the East Countries they pay no Tithes but a certain Portion according to the Custome c. And all this is true if not that Tithes be discharged or changed by one of the said five waies And forasmuch as it appeareth by themselves that the part or value was part of the Iudiciall Law certainly the same doth not bind any Christian Common-wealth but that the same may be altered by reason of time place or other consideration as it appeareth in all punishments inflicted by the Iudiciall Law they do not bind none for Felony is now punished by death c. which was not so by the Iudiciall Law c. Also forasmuch as now it is confessed that the tenth part is now due Ex institutione Ecclesiae that is to say By their Canons and it appeareth by the Statute of 25 H. 8. cap. 19. That all Canons c. made against the Prerogative of the King in his Laws Statutes or Customes of the Realm are void and that was but a Declaratory Law For no Statute or Custome of the Realm can be taken away or abrogated by any Canon c. made out or within the Realm but only by Act of Parliament and that well appeareth by 10 H. 7. f. 17. c. 18. That there is a Canon or Constitution That no Priest ought to be impleaded at the Common Law And there Brian saith That a grave Doctor of the Law once said unto him That Priests and Clarks might be sued at the Common Law well enough For he said that Rex est persona mixta and is Persona unita cum Sacerdotibus Statutis Ecclesiae In which case the King might maintain his Iurisdiction by prescription By which it appeareth that prescription doth prevail against expresse Canons or Constitutions and is not taken away by them which proves that the Statute of 25 H. 8. was but a Declaration of the ancient Law before And there is an expresse Prohibition in Numb 18. Nihil aliud possedebunt Decimarum oblatione contenti quas in usus eoram necessaria separavi Which was not part of the Morall Law or Law of Nature but part of the Iudiciall And therefore men of the holy Church at this day do possesse Houses Lands and Tenements and not Tithes only The second point which agrees with the Law at this day which was adjudged in the said Record of 25 H. 3. is That the limits and bounds of Towns and Parishes shall be tried by the Common Law and not in the Spirituall Court and in this the Law hath great reason for thereupon depends the Title of Inheritance of the Lay Fee whereof the Tithes were demanded for Fines and Recoveries are the common assurances of Lay Inheritances and if the Spirituall Court should try the bounds of Towns if they determine that my Land lyeth in another Town then is contained in my Fine Recovery or other assurance I shall be in danger to lose my Inheritance and therewith agreeth 39 E. 3. 29. 5 H. 5. 10. 32 E. 4. t. Consultation 3 E. 4. 12 19 H. 6. 20. 50 E. 3. 20. many other Presidents untill this day And note there is a Rule in Law that when the Right of tithes shall be tried in the Spiritual Court the Spirit Court hath jurisdiction therof that our Courts shall be ousted of the Iurisdiction 35 H. 6. 47. 38 H. 6. 21. 2 E 4. 15. 22 E. 4. 23. 38 E. 3. 36. 14 H 7. 17. 13 H. 2. Jurisd 19. but that is when debate is between Parson and Vicar or when all is in one Parish but when they are in severall Parishes then this Court shall not be ousted of the Iurisdiction See 12 H. 2. to Jurisdiction 17. 13 R. 2. ibid. 19. 7 H. 4. 34. 14 H. 4. 17. 38 E 3. 56. 42 E. 3. 12. And yet there is a Canon expresly against this which see in Linwood titulo de penis 55. And so fol. 227 228. amongst the Canons or Constitutions of Bonaface An. Dom. 1277. And the causes wherefore the Iudges of the Common Law would not permit the Ecclesiasticall Iudges to try Modum Decimandi being pleaded in their Court is because that if the Recompence which is to be given to the Parson in satisfaction of his tythes both not amount to the value of the Tythes in kinde they would overthrow Note this difference Although that the parties do admit the Jurisdiction of the Court yet upon the pleading if the right of the Tythes shall come in debate there this Court shall be ousted of the Jurisdiction the Spiritual Court shall have Jurisdiction But when the right of tythes cometh in debate and the Spiritual Court cannot have Jurisdiction or Conusance of it as where a Lay-man is Plaintiff as Farmor or Defendant as Servant of the Parson as a Lay man Farmor cannot sue there nor he who justifies as Servant cannot be sued in Trespass But if the Suit be between Parson and Vicar or Parson and Parson and other Spiritual persons if the Kings Court be ousted of the Jurisdiction after severance of the ninth part yet the Libel ought to be for substraction of Tythes for of that they have jurisdiction and
and Seale put to the Transcript ingrossed and not to the Testament it self and so out of the Statute and the Statute extends only when the Probat and Seale is put to the Testament it self and for the ingrossing of it after the Probate no certain Fee is provided by the Statute But for the Registring of it after it is proved there is an expresse Fee in the Statute But I conceived that the said taking of the fourteen shillings ten pence in the Case at Bar was directly against the Statute For the Act is in the Negative and if the Executor requireth the Testament to be ingrossed in Parchment he ought to agree with him who he requireth to do it as he may But the Ordinary Officiall c. ought not to exact any Fee for the same of the party as a thing due to him for divers Causes 1. Because the words of the Act are expressed for the Probation c. and for the registring sealing writing praysing making of Inventories Fines giving of Acquittances c. which word writing extends expresly to this Case 2. The words are Or any thing concerning the same Probate and when the Seal and Probate is put to the Transcript the same without question concerns the Probate for the Probat is not put to any writing but only to that therefore the same concerns the Probate 3. Such a Construction should make the Act idle and vain for if the Ordinary Officiall c. might take as much as he pleaseth for the ingrossing done by his Ministers as a Fee due to him all the purview of the Statute which is penned so precisely concerning persons scil Bishops Ordinaries and all persons who have power to prove Wills and Testaments Registers Scribes Summoners Apparations or any other the Ministers as for the thing it self scil the probation insinuation approbation registring sealing writing praysing making of Inventories Fines giving of Acquittances or any other thing concerning the same should be all in vain by that evasion of Transcribing of it as well against the expresse Letter of the Act as the intention and moving of it Also the Statute saith five shillings and not above so as the manner of precise penning of it excludes all nice evasions And the Act ought to be expounded to suppresse Extortion which is a great affliction and impoverishing of the poor Subjects 4. As this Case is he annexeth the Probate and Seale to the Transcript ingrossed which the Plaintiff brought with him and offered to the Defendant so as the Case at Bar was without question And generally the Ordinary Officiall c. cannot exact or take any Fee for any thing which concerns the Probate of a Will or Testament but that which the Statute limits And afterwards the Iury found for the Plaintiff and of such opinion was Walmesley Warberton Daniel and Foster Iustices the next Term in all things But upon exception in Arrest of Iudgment for not pursuing of the Act in the Information Iudgment is not yet given c. X. Hillar Anno 6 Jacobi Regis In the Common Pleas. NOta that in this Terme a Question was moved to the Court Aide to make the Kings eldest Son Knight which was this If Tenant in Burgage should pay Ayde unto the King to make his eldest Son Knight And the Point rests upon this If the Tenure in Burgage be a Tenure in Socage For by the ancient Commmon Law every Tenant in Knights Service and every Tenant in Socage was to give to his Lord a reasonable Ayde to make his eldest Son a Knight and to marry his eldest Daughter and that was incertain at the Common Law and also incertain when the same Vide F. N. B. 82. 20. should be paid And this appeareth by Glanvil Lib. 9. cap. 8. fol. 70. who wrote in the time of Henry the second Nihil autem certum Statutum de hujusmodi auxiliis dandis vel exigendis c. sunt alii praeterea See the statute of 27 H. 8 cap 10 of uses in the Preamble concerning Aides to make the eldest Son Knight and to marry the Daughter Casus in quibus licet Dominis auxilia solvenda sunt certa forma praescripta ab hominibus suiis ut silius suus haeres fiat miles vel si primogenitam suam filiam maritaverit c. And in the beginning of the Chapter it is called Rationabile Auxilium because that then it was not certain but to be moderated by reason in respect of Circumstances And by the Preamble of the Statute of West 1. An. 3 E. 1. cap. 35. Where it is said Forasmuch as before that time reasonable Ayde to make ones Son Knight or to marry his Daughter was never put in certain nor when the same ought to be payd nor how much be taken the said Act put the said two incertainties to a certainty 1. That for a whole Knights Fee there be taken but 20 s. and of 20 l. Lands holden in Socage 20 s. and of more more and of less less according to the rate by which the Ayd it self was set certain 2. That none might levy such Ayd to make his son a Knight until his son be of the age of fifteen years nor to marry his daughter until she be of the age of seven years And Fleta who wrote after the said Act calls them rationabilia auxilia ad filium militem faciendum vel ad filiam primogenitam maritandum And by the Statute of 25 E. 1. where it is provided That no Taxes shall be taken but by common consent of the Realm there is an exception of the ancient Ayds c. which is to be intended of these Ayds due unto the King by the ancient Common Law But notwithstanding the said Act of VVestm 1. it was doubted whether the King because he is not expresly named were bound by it and therefore in the twentieth year of E. 3. the King took an Ayd of 40 s. of every Knights Fee for to make the Black Prince Knight and nothing then of Lands holden in Socage and to take away all question concerning the same the same was confirmed to him in Parliament and afterwards anno 25 E. 3. cap. 11. it is enacted That reasonable Ayd to make the Kings eldest Son Knight and to marry his eldest Daughter shall be demanded and levyed after the form of the Statute made thereof and not in other manner that is to say Of every Fee holden of the King without Mean 20 s. and no more and of every 20 l. Land holden of the King without Mean in Socage 20 s. and no more Now Littleton lib. 2. cap. 10. fol. 36. b. Burgage Tenure is where an ancient Borough is of which the King is Lord and those who have Tenements within the Borough hold of the King their Tenements that every Tenant for his Tenement ought to pay to the King a certain Rent and such Tenure is but Tenure in Socage and all Socage Land is contributary to
Ayd and therefore a Tenant in Burgage shall be contributary to it And it is to be observed and so it appeareth in the Register fo 1 2. That in a Writ of Right if the Lands or Tenements are holden by Knights service it is said Quas clamat tenere de te per servitium unius feodi Militis and if the Lands be holden in Socage the Writ is Quis clamat tenere de te per liberum servitium unius libri cumini c. so as Socage Tenure in all Writs is called Liberum servitium And by the Writ of Ayd Fitz. N. B. 82. it is commanded to the Sheriff Quod juste c. facias habere A. rationabile Auxilium de Militibus liberis tenentibus suis in Baliva tua c. so as the same Writ makes a distinction of Knights service by the name of Militibus and of Socage by the name of Liberis tenentibus And in the Register fol. 2. 6. the Writ of Right for a House in London which is holden of the King in Burgage is in these words Rex Majori vel Custodi Vicecom London Praecipimus vobis quod sine dilatione teneatis G. de uno Messuagio c. in London quae clamat tenere de nobis per liberum servitium c. which proves That Tenure in Burgage is a Tenure in Socage But it appeareth by the Books of Avowry 26. and 10 H. 6. so Ancient Demesne 11. it was resolved by all the Iustices in the Exchequer Chamber That no Tenure should pay for a reasonable Ayd to marry the Daughter or to make the Son a Knight but Tenure by Knights service and Tenure by Socage but not Tenure by Grandserjanty nor no other and 13 H. 4. 34. agrees to the Case of Grandserjanty and by the said Books it appeareth that Tenure by Frankalmoign and Tenure by Divine Service shall not pay for they are none of them but Tenure in Burgage is a Tenure in Socage and therefore the said Books prove that such a Tenure shall pay Ayd And I conceive that Tenure by Petit-Serjanty shall pay also Ayd for Litt. lib. 2. cap. 8. fo 36. says That such a Tenure is but Socage in effect but Fitz. N. B. 83. a. avoucheth 13 H. 4. 34. That Tenant by Petit-Serjanty shall not pay Ayd but the Book onely extends to Grand-Serjanty If the Houses in a City or Borough are holden of the King in Burgage and the King grant the Seignories to one and the City or Borough to another to hold of him then those Houses shall not be contributary to Ayd for they are not immediately holden of the King as is required by the Law And I conceive that he who holdeth a Rent of the King by Knights service or in Socage shall pay Ayd for the words of the Act of VVestm 1. cap. 35. are From henceforth of a whole Knights Fee onely be taken 20 s. of 20 l. Land holden in Socage 20 s. and the Mean is said in supposition of Law to hold the Land and it is not reason that the Tenant by his Feoffment before the Statute should prejudice the Lord of his benefit And although it was said that a Tenure in Socage in servitium Socae as Littleton saith and the same cannot be applyed to Houses to that it was answered That the Land upon which the House is built or if the House falleth down may be made arable and be ploughed And a Rent may be holden in Socage and yet it is not subject to be plowed but by a possibility after words escheat to the Lord of the Land See Huntington Polidor Virgill and Hollinsheds Chronicle fol. 35. 15 H. 4. Ayd was levyed by Hen. 7. 1. to marry Mawd his eldest Daughter to the Emperor viz. 3 l. of every Hide of Land c. And see The Grand Customary of Normandy cap. 35. there is a Chapter of Ayds whereof the first is to make the eldest Son of his Lord a Knight and the second to marry his eldest Daughter And see a Statute made in anno 19 H. 7. which begineth thus Item praefati Communes in Parliamento praedicto existentes ex assensu duorum Spiritualium Temporalium in dicto Parliamento similiter existen concesserunt praefato Regi quandà m pecuniae summam in loco duorum rationabilium auxiliorum suae Majestatis de jure debit tam ratione creationis nobilissimi filii sui primogeniti bonae memoriae Domini Arthuri nuper Principis VValliae quam ratione Matrimonii traductionis nobilissimi Principis Margaritae filiae suae primogenit quam etiam multiplicare pro Regni sui perpetua pace tranquillitate c. certis viis modis levand cujus quidem concessionis Tenor c. sequitur in haec verba For as much as the King our Soveraign Lord is rightfully intituled to have two reasonable Ayds according to the Laws of this Land the one for the making Knight the right honorable his first begotten Son Arthur late Prince of VVales deceased and the other for that the marriage of the Right Noble Princess his first begotten Daughter Margaret now marryed to the King of Scots and also that his Highness hath born great and inestimable charges for the defence of the Realm c. considering the premisses And if the same Ayds should be levyed and had by reason of their Tenures according to the ancient Laws of the Land should be to them doubtful and uncertain and great unquietness for the search and not knowledg of their several Tenures and their Lands chargeable to the same have made humble Petition unto his Highness graciously to accept and take of them the sum of 40000 l. as well in recompence and satisfaction of the said two Ayds as for the said great and inestimable charges c. as is aforesaid The King to eschew and avoyd the great vexation troubles and unquietness which to them should have ensued if the said Ayds were levyed after the ancient Laws and for the good and acceptable services of the Nobles of this Realm and other his faithful Subjects in their own persons and otherwise done to his Grace and thereby sustained manifold costs and charges to his great honor and pleasure doth pardon the said two Ayds and accepteth the offer aforesaid and that the poorest of his said Commons should not be contributary to the said sum of 40000 l. hath pardoned 10000 l. parcel thereof and doth accept of 30000 l. in full satisfaction c. And that the Cities and Boroughs Towns and places being in every Shire not by themselves accountable in the Exchequer for Fifteens and Tenths be chargeable with the Shires c. And all Cities and Boroughs not contributary c. but accountable by themselves c. shall be chargeable by themselves towards the payment of the said 30000 l. with such sums as under the Act particularly appear c. And there under the Act appear the several Taxations of every several County City
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
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-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
Court. See 21 Eliz. Dyer 362. If Tenant in Socage dyeth seised in possession his Heir within the age of fourteen years he shall not sue Livery but shall have an Ouster le main una cum exitibus but otherwise it is if the Heir be of the age of fourteen years which is his full age for Socage and therewith agreeth 4 Eliz. Dyer 213. And two presidents were shewed which were decreed in the same Court by the advice of the Iustices Assistants to the Court. One in Trinity Term 16 Eliz. Thomas Stavely the Father enfeoffed William Strelley and Thomas Law of the Mannor of Ryndly in the County of Nottingham upon condition that they re-enfeoff the Feoffor and his Wife for their lives the remainder to Thomas Stavely son and heir apparent of tho Feoffor in Fee which Mannor was holden of Queen Elizabeth in Socage in capite and upon consideration of the saving in the Statute of 32 H. 8. next after the clause concerning Tenure in Socage in chief it was resolved That no Livery or Ouster le main should be sued in such case and the reason was because that the precedent clause giveth liberty to him who holdeth in Socage in chief to make disposition of it either by act executed or by Will at his free will and pleasure and before the said act no Livery or Ouster le main should be sued in such case and the words of the Saving are Saving c. to the King c. all his Right c. of primer seisin and relief c. for Tenure in Socage or of the nature of Tenure in Socage in chief as heretofore hath been used and accustomed But there was no use or custom before the Act that the King should have any primer seisin or relief in such case and the words subsequent in the said Saving depend upon the former words and do not give any primer seisin or relief where none was before Another president was in Pasc 37 Eliz. in the Book of Orders fo 444. where the case was that William Allet was seised of certain Lands in Pitsey called Lundsey holden of the Queen in Socage in chief and by Deed covenanted to stand seised to the use of his Wife for life and afterwards to the use of Richard his younger son in Fee and dyed his Heir of full age and all that was found by Office and it was resolved ut supra That no Livery or Ouster le main should be sued in that case but the doubt in the case at Bar was because that Henry the Feoffor had a Reversion in Fee which descended to the said VVilliam his eldest son XXI Trinity Term anno 7 Jacobi Regis The Case of the Admiralty A Bill was preferred in the Star-Chamber against Sir Richard Hawkins Vice Admiral of the County of Devon and was charged that one William Hull and others were notorious Pirats upon the High Seas and shewed in certain what Piracy they had committed the said Sir Richard Hawkins knowing the same did them receive abet and comfort within the body of the County and for bribes and rewards suffered them to be discharged And what offence that was the Court referred to the consideration of the two chief Iustices and the chief Baron who heard Councel of both sides divers days at Serjeants Inn. And first it was by them resolved that by the Common Law the Admirals ought not to meddle with any thing done within the Realm but onely with things done upon the Sea and that appeareth fully by the Statute of 13 R. 2. cap. 5. by which it appeareth that such was the Common Law in the time of King Edw. the third and therewith agreeth the Statute of 2 H. 4. cap. 11. and the Statute of 15 H. 2. cap. 3. That because the Admirals and their Deputies encroach to themselves divers Iurisdictions and Franchises more then they ought to have Be it enacted that all Contracts Pleas and Complaints and all other things arising within the bodies of the Counties as well by Land as by Water as also of Wreck of the Sea the Admiral Court shall not have any conusance power or jurisdiction c. Nevertheless of the death of a man and of Mayheme done in great Ships being in the main stream of great Rivers onely below the Bridges nigh to the Sea and not in other places of the same Rivers and to arrest Ships in the great Flotes for the great Voyage of the King and of his Realm and by the Statute of 2 H. 5. cap. 6. the Admirals of the King of England have done and used reasonably according to the ancient Law and Custom upon the main Sea See the Statute of 5 Eliz. cap. 5. And all this appeareth to be by the common Law and with that agreeth Stamford fo 51. And if a man be killed or slain within the Arms of the Sea where a man may see from the one part of the Land to the other the Coroner shall enquire of it and not the Admiral because that the Country may well know it and he voucheth 8 E. 2. Coron 399. So saith Stamford the same proves that by the common Law before the Statute of 2 H. 4. cap. 11. the Admiral shall not have Iurisdiction unless upon the High Sea See Pla. Com. 37. 6. If the Marshal holdeth Plea out of the Verge or the Admiral within the body of the County the same is voyd See 2 R. 3. 12. 30 H. 6. 6. by Prisoit 2. It was resolved that the said Statutes are to be intended of a power to hold Plea and not of a power to award execution scil de jurisdictione tenendi placiti non de jurisdictione exequendi For notwithstanding the said Statutes the Iudg of the Admiralty may do execution within the body of the County and therefore in 19 H. 6. 7. the case was W. T. at Southwark affirmed a Plaint of Trespass in the Court of Admiralty before the Steward of the Earl of Huntington against J. B. of a Trespass done upon the High Sea upon which issued a Citation to cite the said J. B. to appear before the Steward aforesaid at the common day then next ensuing directed to P. who served the said Citation at which day the said J. B. made default and the usage of the Court is that if the Defendant maketh default he shall be amerced by the discretion of the Steward to the use of the Plaintiff The which J. B. for his default aforesaid was amerced to twenty marks whereupon command was made to the said P. as Minister of the Court aforesaid to take the goods of the said J. B. to make agreement with the beforesaid W. T. by force of which he for the said twenty marks took five Cows and an hundred sheep in execution for the mony aforesaid in the County of Leicester And there it is holden by Newton and the whole Court that the Statutes restrain the power of the Court of Admiralty to hold Plea of a thing done
within the body of the County but they do not restrain the execution of the same Court to be served upon the Land for it may be that the party hath not any thing upon the Sea and then it is reason to have it upon the Land and if such a Defendant have nothing wherewithall to make agreement they of the Court have power to take the body of such a Defendant upon the Land in execution In which case these points were observed 1. Although that the Court of Admiralty is not a Court of Record because they proceed there according to the Civil Law see Brook Error 77. acc yet by custom of the Court they may amerce the Defendant for his default by their discretion 2. That they may make execution for the same of the goods of the Defendant in corpore Comitatus and if he hath not goods then they may arrest the body of the Defendant within the body of the County But the great Question between them was If a man committeth See this point resolved 8 Eli. Dyer per curiam which is omitted out of the printed Book Piracy upon the Sea and one knowing thereof receiveth and comforteth the Defendant within the body of the County if the Admiral and other the Commissioners by force of the Act of 28 H. 8. cap. 16. may proceed by Indictment and conviction against the Receiver and Abettor in as much as the offence of the Accessary hath his begining within the body of the County And it was resolved by them that such a Receiver and Abettor by the common Law could not be indicted or convicted because that the common Law cannot take conusance of the original Offence because that is done out of the Iurisdiction of the common Law and by consequence where the common Law cannot punish the principal the same shall not punish any one as accessary to such a principal And therefore Coke chief Iustice reported to them a Case which was in Suffolk in anno 28 Eliz. where Butler and others upon the Sea next to the Town of Laystaft in Suffolk robbed divers of the Queens subjects and spoyled them of their goods which goods they brought into Norfolk and there they were apprehended and there brought before me then a Iustice of the Peace within the same County whom I examined and in the end they confessed a cruel and barbarous Piracy and that those goods which then they had with them were part of the goods which they had robbed from the Queens subjects upon the High Sea and I was of opinion that in that case it could not be Felony punishable by the common Law because that the original act scil the taking of them was not any offence whereof the common Law taketh knowledg and by consequence the bringing of them into a County could not make the same Felony punishable by our Law and it is not like where one stealeth goods in one County and brings them into another there he may be indicted of Felony in any of the Counties because that the original act was Felony whereof the common Law taketh knowledg and yet notwithstanding I committed them to the Gaol until the coming of the Iustices of Assises And at the next Assises the Opinion of Wray chief Iustice and Periam Iustices of Assise was That for as much as the common Law doth not take notice of the original Offence the bringing of the goods stoln upon the Sea into a County did not make the same punishable at the common Law and thereupon they were committed to Sir Robert Southwell then Vice-Admiral of the said Counties and this in effect agrees with Lacies case which see in my Reports cited in Binghams case in the 2 Reports 93. and in Constables case C. 5. Reports 107. See the Piracy was Felony the Book of 40 Assis 25. by Schard where a Master or Captain of a Ship together with some Englishmen robbed the Kings sujects upon the High Seas where he saith that it was Felony in the Norman Captain and Treason in the Englishmen his companions and the reason of the said case was because the Normans were not then under the Obedience and Allegiance of the King of England for King John lost Normandy and for that cause Piracy was but Felony in the Norman but in the English who were under the Obedience and Allegiance of the King of England the same was adjudged Treason which is to be understood of Pettit Treason which was High Treason before and therefore in that case the Pirates being apprehended the Norman Captain was hanged and the English men were hanged and drawn as appeareth by the same Book see Stamford 10. And some objected and were of opinion That Treasons done out of the Realm might have bin determined by the common Law but truly the same could not be punishable but onely by the Civil Law before the Admiral or by Act of Parliament as all Foreign Treasons and Felonies were by the common Law and therefore where it is declared by the Statute of 25 E. 3. That adherence to the Enemies of the King within England or elsewhere is Treason the same shall be tryed by the common Law but where it is done out of the Realm the Offendor shall not be attainted but by Parliament until the Statute of 35 H. 8. cap. 2. although that there are Opinions in some Books to the contrary see 5 R. 2. Quare impedit c. XXII Trinit 7 Jacobi Regis In the Common-Pleas Pettus and Godsalves Case IN a Fine levyed Trinity Term anno quinto of this King between John Pettus Esq Plaintiff and Roger Godsalve and others Deforceants of the Mannor of Castre with the appurtenances c. in the County of Norfolk where in the third proclamation upon the Foot of the same Fine the said proclamation is said to have been made in the sixth year of the King that now is which ought to have been anno quinto of the King and whereas upon the Foot of the same Fine the fourth proclamation is altogether left out because upon the view of the proclamations upon Dorsis upon Record not finis ejusdem Termini per Justiciarias remaining with the Chyrographer and the Book of the said Chyrography in which the said proclamations were first entered it appeareth that the said proclamations were rightly and duly made therefore it was adjudged that the Errors or defects aforesaid should be amended and made to agree as well with the proclamation upon Record of the said Fine and Entry of the said Book as with the other proclamations in Dorsis super pedes aliorum finium of the same Term and this was done upon the motion of Haughton Serjeant at Law XXIII Mich. 7 Jacobi In the Court of Wards Sammes Case JOhn Sammes being seised of Grany Mead by Copy of Court Roll of the Mannor of Tollesham the great of which Sir Thomas Beckingham c. and held the same of the King by Knights service in capite Sir Thomas by
to the President and Councel of York between Lock Plaintiff and Bell and others Defendants and that was a Replevyn in English was granted by the said President and Councel which I affirmed was utterly against Law For at the Common Law no Replevyn ought to be made but by Original Writ directed to the Sheriff And the Statute of Marlbridg cap. 21. and West 1. cap. 17. hath authorized the Sheriff upon Plaint made to him to make a Replevyn and all that appeareth by the said Statutes and by the Books of 29 E. 3. 21. 8 Eliz. Dyer 245. And the King neither by his Instructions had made the President and Councel Sheriffs nor could grant to them power to make a Replevyn against the Law nor against the said Acts of Parliament but the same ought to be made by the Sheriff And all that was affirmed by the Lord Chancellor for very good Law And I say that it might well be that we have granted other Prohibitions in other Cases of English Replevyns Another Prohibition I confess we have granted between Sir Bethel Knight now Sheriff of the County of York as Executor to one Stephenson who had made him and another his Executors and preferred an English Bill against Chambers and divers others in the nature of an Action upon the Case upon a Trover and Conversion in the life of the Testator of goods and Chattels to the value of 1000 l. and because the other Executor would not joyn with him although he was named in the Bill he had not any remedy at the Common Law he prayed remedy there in Equity and I say that the President and Councel have not any authority to proceed in that Case for divers causes 1. Because there is an express limitation in their Commission that they shall not hold plea between party and party c. unless both parties or one of them tanta paupertate sunt gravati that they cannot sue at the Common Law and in that case the Plaintiff was a Knight and Sheriff and a man of great ability 2. By that Suit the King was deceived of his Fine for he ought to have had 200 l. Fine because that the damages amounted to 4000 l. and that was one of the causes that the Sheriff began his Suit there and not at the Common Law another cause was that their Decrees which they take upon them are final and uncontroulable either by Error or any other remedy And yet the President is a Noble-man but not learned in the Law and those which are of the Councel there although that they have the countenance of Law yet they are not learned in the Law and nevertheless they take upon them final and uncontroulable Decrees in matters of great importance For if they may deny Relief to any at their pleasure without controulment so they may do it by their final Decrees without Error Appeal or other remedy which is not so in the Kings Courts where there are five Iudges for they can deny Iustice to none who hath Right nor give any Iudgment but the same is controulable by a Writ of Error c. And if we shall not grant Prohibitions in Cases where they hold Plea without authority then the subjects shall be wrongfully oppressed without Law and we denyed to do them Iustice And their ignorance in the Law appeared by their allowance of that Suit scil That the one Executor had no remedy by the Common Law because the other would not joyn in suit with him at the Common Law whereas every one learned in the Law knoweth that summons and severance lieth in any Suit brought as Executors and this also in that particular Case was affirmed by the Lord Chancellor and he much inveighed against Actions brought there upon Trover and Conversion and said that they could not be found in our ancient Books Another Prohibition I confess we have granted between the L. Wharton who by English Bill sued before the Counsel Banks Buttermere and others for fishing in his several Fishings in Darwent in the County of C. in the nature of an Action of Trespass at the Common Law to his damages of 200 l. and for the causes next before recited and because the same was meerly determinable at the Common Law we granted a Prohibition and that also was allowed by the Lord Chancellor And as to the case of Information upon the Riotous Rescous I having forgotten to speak to that the King himself asked what the Case was to whom I answered that the case was That one exhibited a Bill there in the nature of an Action of Debt upon a Mutuatus against Watson who upon his Oath affirmed that he had satisfied the Plaintiff and that he owed him nothing and yet because the Defendant did not deny the Debt the Councel decreed the same against him and upon that Decree the Pursuivant was sent to arrest the said Watson who arrested him upon which the Rescous was made and because that the Suit was in the nature of an Action of Debt upon a Mutuatus at the Common Law and the Defendant at the Common Law might have waged his Law of which the Defendant ought not to be barred by that English Bill quia beneficium juris nemini est auferendum the Prohibition was granted and that was affirmed also by the Lord Chancellor whereupon I concluded that if the principal cause doth not belong unto them all their proceedings was coram non Judice and then no Rescous could be done but the Lord Chancellor said that though the same cannot be a Rescous yet it was a Riot which might be punished there which I denyed unless it were by course of Law by force of a Commission of Oyer and Terminer and not by an English Bill but to give the King full satisfaction in that point the truth is the said Case was debated in Court and the Court inclined to grant a Prohibition in the said case but the same was stayed to be better advised upon so as no Prohibition was ever under Seal in the said Case Also I confess that we have granted divers Prohibitions to stay Suits there by English Bill upon penal Statutes for the manner of prosecution as well for the Action Proces c. as for the count is to be pursued and cannot be altered and therefore without question the Councel in such cases cannot hold Plea which was also affirmed by the Lord Chancellor And I said that it was resolved in the Reign of Queen Eliz. in Parots Case and now lately in the Case of the President and Councel of Wales That no Court of Equity can be erected at this day without Act of Parliament for the reasons and causes in the Report of the said Case of Parrot And the King was well satisfied with these reasons and causes of our proceedings who of his Grace gave me his Royall hand and I departed from thence in his favour And the surmise of the Number and that the Prohibition in the said Case
of them to the use of himself for the term of his life and after to the use of his eldest sonne and to such a woman which he shall marry and to the heirs males of the body of the son and afterwards the father dieth and after the son taketh a wife and dieth if the wife shall take an Estate for life and the doubt was because the wife of the son was not within the Considerations and the use was limited to one who was capable scil the son and to another who was not capable and therefore the son should take an estate in tail executed But it was resolved by the said two chief Iustices and chief Baron That the Wife should take well enough and as to the first Reason they resolved That the Wife was within the consideration for the consideration was for the advancement of his posterity and without a Wife the Son cannot have posterity also when the Wife of the Son is sure of a Ioynture the same is for the advancement of the Son for thereby he shall have the better marriage And as to the second it was resolved That the Estate of the Son shall support the use to the Defendant and when the contingent happeneth the Estate of the Son shall be changed according to the limitation scil to the Son and the woman and the Heirs of the body of the Son And so it was resolved in the Kings-Bench by Popham chief Iustice and the whole Court of the Kings-Bench in the Reign of Queen Eliz. in Sheffields Case for both points XVIII Trinit 7 Jacobi Regis In the Court of Wards Sparies Case JOhn Spary seised in fee in the right of his Wife of Lands holden of the Crown by Knights service had issue by her and 22 Decemb. anno 9 Eliz. aliened to Edward Lord Stafford the Wife dyed the issue of full age the Lands continue in the hands of the Alienee or his Assigns and ten years after the death of the Father and twelve years after the death of the Mother Office is found 7 Jacobi finding all the special matter after the death of the Mother the Question was Whether the mean profits are to be answered to the King and it was resolved by the said two chief Iustices and the chief Baron That the King should not have the mean profits because that the Alienee was in by title and until Entry the Heir hath no remedy for the mean profits but that the King might seise and make Livery because that the Entry of the Heir is lawful by the Statute of 32 H. 8. XIX Trinit 7 Jacobi Regis In the Court of Wards IT was found by force of a Mandamus at Kendal in the County of VVestmerland the 21 of December 6 Jacobi Regis That George Earl of Cumberland long before his death was seised in tayl to him and to the Heirs males of his body of the Castles and Mannors of Browham Appleby c. the Remainder to Sir Ingram Clifford with divers Remainders over in tayl the Remainder to the right Heirs of Henry Earl of Cumberland Father of the said George and that the said George Earl so seised by Fine and Recovery conveyed them to the use of himself and Margaret his Wife for their lives for the Ioynture of the said Margaret and afterwards to the Heirs males of the body of George Earl of Cumberland and for want of such issue to the use of Francis now Earl of Cumberland and to the Heirs males of his body begotten and for want of such issue to the use of the right Heirs of the said George and afterwards by another Indenture conveyed the Fee-simple to Francis Earl By force of which and of the Statute of uses they were seised accordingly and afterwards 30 Octob. anno 3 Jacobi the said George Earl of Cumberland dyed without Heir male of his body lawfully begotten and further found that Margaret Countess of Cumberland that now is was alive and took the profits of the premisses from the death of the said George Earl of Cumberland until the taking of that inquisition and further found the other points of the Writ And first it was objected that here was no dying seised found by Office and therefore the Office shall be insufficient But as to that it was answerod and resolved That by this Office the King was not entitled by the common Law for then a dying seised or at first a dying the day of his death was necessary But this Office is to be maintained upon the Statute of 32 and 34 H. 8. by force of which no dying seised is requisite but rather the contrary scil If the Land be as this case is conveyed to the Wife c. And so it was resolved in Vincents case anno 23 Eliz. where all the Land holden in Capite was conveyed to the younger Son and yet the eldest Son was in Ward notwithstanding that nothing descended The second Objection was It doth not appear that the Estate of the Wife continued in her until the death of the Earl for the Husband and Wife had aliened the same to another and then no primer seisin shall be as it is agreed in Binghams case As to that it was answered and resolved That the Office was sufficient prima facie for the King because it is a thing collateral and no point of the Writ and if any such alienation be which shall not be intended then the same shall come in of the other part of the Alienee by a Monstrans de droit and the case at Bar is a stronger case because it is found that the said Countess took the profits of the premisses from the death of George the Earl until the finding of the Office XX. Trinity Term 7 Jacobi In the Court of Wards Wills Case HEnry Wills being seised of the fourth part of the Mannor of Wryland in the County of Devon holden of Queen Elizabeth in Socage-tenure in capite of the said fourth part enfeoffed Zachary Irish and others and their Heirs to the use of the said Henry for the term of his life and afterwards to the use of Thomas Wills his second son in tayl and afterwards to the use of Richard Wills his youngest son in tayl and for default of such issue to the use of the right Heirs of the said Henry and afterwards the said Henry so seised as abovesaid dyed thereof seised William Wills being his Son and Heir of full age Thomas the second son entered as into his Remainder All this matter is found by Office and the question was If the King ought to have primer seisin in this case and that Livery or Ouster le main shall be sued in this case by the Statutes of 32 and 34 H. 8. And it was resolved by the two chief Iustices and the chief Baron that not if in this case by the common Law no Livery or Ouster le main shall be sued and that was agreed by them all by the experience and course of the
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
VVillowes all his Right Estate c. of and in the Tenements aforesaid in which c. The Plaintiff surjoyneth and saith that the said summ of five pounds six shillings eight pence c. was not rationabilis finis as the said Thomas Bradye above hath alledged c upon which the Defendant doth demur in Law And in this Case these points were resolved by Coke chief Iustice VValmesly VVarberton Daniel and Foster Iustices 1. And principally If the Fine assessed had been reasonable yet the Lords ought to have set a certain time and place when the same should be paid because the same stands upon a point of forfeiture As if a man bargains and assures Land to one and his heirs upon condition that if he pay to the Bargaines or his heirs ten pounds at such apiace that he and his heirs shall re-enter In that case because no time is limited the Bargainor ought to give notice to the Bargaines c. when he will tender the money and he cannot tender it when he pleaseth and with that agrees 19 Eliz. Dyer 354. For a man shall not lose his Land unlesse an expresse default be in him and the Bargaineein such Case is not tied to stay alwaies in the place c. So in the Caseat Bar the Copyholder is not tied to carry his Fine alwaies with him when he is at Church or at Plow c. And although that the Rejoynder is that the Plaintiff refused to pay the Fine so he might well do when the request is not lawfull nor reasonable for in all cases when the request is not lawfull nor reasonable the party may without prejudice deny the payment And he who is to pay a great Fine as a 100 l. or more it is not reasonable that he carry it alwaies with him in his Pocket and presently the Copyholder was not bound to it because that the Fine was uncertain arbitrable as it was resolved in Hulbarts Case in the fourth part of my Reports amongst the Copyhold Cases 2. It was resolved that although the Fine be incertain and arbitrable yet it ought to be secundum arbitrium boni viri And it ought to be reasonable and not excessive for all excessivenesse is abhorred in Law Excessus in re qualibet jure reprobatur Communi For the Common Law forbids any excessive distresse as it appeareth in 41 E. 3. 26. Where a man avowed the taking of sixty Sheep for 3 d. Rent and the Plaintiff prayed that he might be amerced for the Distresse And the Court who is alwaies the Iudge whether the Distresse be reasonable or excessive held that six Sheep had been a sufficient Distresse for the said Rent and therefore he was Vi. F. N. B 82 a reasonable Aid incertain untill the Statute of Glanvi lib. 9. fol. 70. 14 H. 4 9. by Hill 14 H. 4. 1. 3. amerced for so many of them as wereabove six Sheep And the Court said that if the Avowant shall have return he shall have a return but of six Sheep And this appeareth to be the Common Law for the Statute of Artieuli super Cartas extends only where a grievous Distress is taken for the Kings Debt See F. N. B. 174. a. and 27. Ass 51. 28. Ass 50. 11 H. 4. 2. and 8 H. 4. 16. c. Non Capiatur gravis Districtio c. And so if an excessive or an unreasonable Amerciament be imposed in any Court Baron or other Court which is not of Record the party shall See Glanvil lib. 9. cap. 8. Optime B. rationabilibus auxiliis ita tamen moderat secund Quantitatem feodorum suorum secundum facultates ut nemini gravidae viderentur c. Vide Bracton 84. b. cationab relev 1. quod rationem mensuram non excedat and see him there 86. optime c have Moderata Misericordia And the Statute of Magna Charta is but an affirmance of the Common Law in such point See F. N. B. 75. Nullus liber homo amercietur nisi secundum quantitatem delicti And gravis Redemptio non est exigenda And the Common Law gives an Assise of Sovient Distresse and Multiplication of Distresse found which is excessive in respect of the multiplicity of vexation And therewith agreeth 27. Ass 50 51. Non Capiatur multiplex districtio F. N. B. 178. b. And if Tenant in Dower hath Villains or Tenants at Will who were rich and she by excessive Tallages and Fines makes them poor and Beggers the same is adjudged Wast And therewith agreeth F. N. B. 61. b. 16 H. 3. Wast 135. and 16 H. 7. And see the Register Iudiciall fol. 25. b. Wast lieth in exulando Henricum Hermanum c. Villeius Quorum quilibet tenet unum Messuagium unam virgat terrae in Villinagio in praedict villa de T. by grievous and intollerable Distresses By all which it appeareth That the Common Law doth forbid intollerable and excessive oppressing and ransoming of Villains whereby of Rich they become Poor And yet it may be said that a man may do with his Villain what he pleaseth or with his Tenant at Will but the Law limits the same in a reasonable and convenient manner For it appeareth that such intollerable oppression of the poor Tenants is to the disinherizin of him in the Reversion So in the Case at Bar Although that the Fine is incertain yet it ought to be reasonable and so it appeareth by the said Custome which the Defendant hath alledged And therefore in such Case the Lord cannot take as much as he pleaseth but the Fine ought to be reasonable according to the Resolve of the Court in the said Case of Hubbard in the fourth part of my Reports 30. Vide 14 H. 4. 4. by Hill It was resolved That if the Lord and Tenant cannot agree of the Fine but the Lord demandeth more then a reasonable Fine that the same shall be decided and adjudged by the Court in which any Suit shall be for or by reason of the denying of tho Fine And the Court shall adjudge what shall be said a reasonable Fine having regard to the quality and value of the Land and other necessary circumstances which ought to appear in pleading upon a Demurrer or found by Verdict And if the Fine which the Lord or his Steward assesseth be reasonable Bracton l. 2 fo 51. Quam longuin debet esse tempus non definitur in jure sed pendet â—ex justicianorum discretiono Let the Copyholder well advise himself before he deny the payment of it And alwaies when reasonablenesse is in question the same shall be determined by the Court in which the Action dependeth As reasonable time 21 H. 6. 30. 22 E. 4. 27. 50. 29 H. 8. 32. c. So if the Distresse be reasonable and the like c. It was resolved That the said Fine in the Case at the Bar was unreasonable viz. To demand for a Cottage and an acre of Pasture five pounds six
or Peculiar other then in such particular Cases only as are expresly excepted and reserved in and by a Statute Anno 23 H. 8. cap. 9. And the King by Letters Patents under the great Seal hath given his royall Assent to this Canon 1. Jac. at the Synod at London Vi. Linwood de excusationibus 200. Lit. m. 5. pag. 2. L. 2. amongst others from time to time to be observed fulfilled and kept as well by the Archbishop of Canterbury the Bishops and their Successors and the rest of the whole Clergy of the Province of Canterbury in their severall Callings Offices Functions Ministeries Degrees and Administrations as also by all and every Dean of the Arches and other Iudge of the said Archbishops Courts Guardians of Spiritualties Chancellors c. So the same is also expresly confirmed under the great Seal And although the Archbishoprick of Canterbury was then void yet the Guardian of the Spiritualties was there and the Archbishop of Canterbury that now is and then Bishop of London was by Letters Patents President of the said Councell in the place of the Archbishop then deceased And the King gave his royall Assent to the same and the said Canon is of as full force as if the said late Archbishop of Canterbury had been then alive And whereas it is said in the Preamble of the Act In the Arches Audience and other high Courts Archbishops were Legati nati and had Legatine power which is now abolished vi Linwood of the Archbishop of this Realm It is to be known That the Archbishops of this Realm before that Act had power Legatine from the Pope by which they pretended to have not only supereminent Authority over all but concurrent Authority with every Ordinary in his Dioces not as Archbishop of Canterbury c. but by his power and authority Legatine For Sunt tria genera Legatorum 1. quidam de latere Dom. Papae mittuntur ut Cardinales quos appellant fratres 2. Alii sunt Dativi non de latere qui simpliciter in Legatione mittantur c. 3. Sunt Nati sive Nativi qui suarum Ecclesiarum praetextu legatione fingantur Tales sunt quatuor scil Archepiscopus Cant. Eboracensis Remanensis Pisanis So as before that Act the Archbishop of Canterbury was Legatus Natus and by force of his authority Legatine usurped against the Canons upon all the Ordinaries in his Precinct and by colour thereof claimed currant authority with them which although they held in the Courts of the Archbishop the same was remedied by the Act of 23 H. 8. cap. 9. and all that which he usurped before was not as he was Archbishop for as to that he was restrained by the Canons but as he was Legatus Natus which authority is now taken away and abolished utterly Lastly If the said Act of 23 H. 8. cap. 9. should not be so expounded Vi lib. Arch. Cant. p. 39. that the Arch-Bishop of Cant. hath a Peculiar in many Dioces Then the Act which is principally made as it appeareth by the Preamble against the Courts of the Archbishopricks should be as to them illusory For if the Bishop of Canterbury in respect of his exempt Peculiar in London may draw to him all the Dioces in London So might he at Newington which is a Peculiar in Winchester Dioces draw to him the whole Dioces of Winchester And at Totteredge neer Bornet the whole Dioces of Lincoln and so of the like 3. It was resolved That when any Iudges are prohibited by any Act of Parliament that if they do proceed against the Act there a Prohibition lieth As against the Steward and Marshall of the Houshold Quod seneschallus Mariscallus non teneant Placit de libero tenem de Debito de Conventione c. So the Statute of Articuli super chartas cap. 3. Register fol. 185. inter Brevia super statuta So against the Constable of the Castle of Dover Quod non tangit Custodiam Castri So to Iustices of Assise upon the statute Quod Inquisitiones quae sunt magni exactionis non Capiantur in Patria Also to the Treasurer and Barons of the Exchequer upon the statute Vi. Pasc 42 Eliz Rot. 139. Rudds case a Prohibition for citing out of the Dioces Tr. 44 Eliz. Rot. 1073. the like in an information upon the Statute against Zachary Babington Vi. If any one in the Spirituall Court appeals contrary to the Statute of 24 H. 8. cap. 12. although the matter be meer Spiritual a Prohibition lyeth So upon the Statute of 2 H 5. cap. 2. De Articul super Cartas Cap. 4. The statute of Rutland Cap. ultimo Quod communia Placit non teneantur in Scaccario All which and many more you may see in the Register inter Brevia super Statuta See F. N. B. 45 46. c. 17 H. 6. 54. vi 13 E. 3. to Prohibition A Prohibition to the Chancellor and diversity of Courts in the Title of Chancery So against all Ecclesiasticall Iudges upon the statute of 2 H. 5. cap. 3. If the Iudges there will not give or deliver to the party a Copy of the Libell although that the matter be meer Ecclesiasticall and therewith agreeth 4 E. 4. 37. and F. N. B. 43. c. So the Case upon the Statute of 2 H. 5. cap. 15. If the Ecclesiasticall Iudges in case of Heresie and other matters of meer Spiritualty do not proceed according to the intention of the same statute as it appeareth by the President in 5 E. 4. Keysons Case 10 H. 7. 17. See the opinion of Paston 9 H. 6. 3. A man excommunicated by the Bishop of London for a Crime done in another Dioces shall not be grieved thereby so as the Common Law takes notice of the Canons in such case as Coram non Judice And although the statute of 23 H. 8. inflicts a penalty yet a Prohibition lyeth for the inflicting of the penalty doth not take away the Prohibition of the Law and therefore Cap. which inflicts punishment if the Sheriff doth not put his Name unto the Return yet the same is Error if he doth not put to his Name see 35 H. 6. 6. when any thing is prohibited by a Statute if the party be convicted he shall be fined for the contempt to the Law and 19 H. 6. 4. agrees in Maintenance And if every person should be put to his Action upon the Statute the same See 2 H. 4. 10 by Haukford and so affirmed by the Court when one who hath not authority holdeth plea in spirituall things whereof the Jurisdiction doth not belong to him yet no consultation shall be grāted because a consultation shall not be granted to one that hath not power c. should be cause of Suits and veration and the shortest and more easy is to have a Prohibition See the Statute of 21 H. 8. cap. 6. of Mortuaries by which it is enacted That no Parson Vicar Curat c. demand
any Mortuary but in such manner as is mentioned in the Act upon pain of forfeiture of so much in value as they take more then is limited by the Act and forty shillings over to the party grieved Yet it appeareth by Doctor and Student lib. 2. cap. 55. fol. 105. That if the Parson c. sueth for Mortuaries otherwise then the Act appointeth that a Prohibition lyeth yet there is a Penalty added which is an authority expresly in the Point And the Case at Bar is a more strong Case and that for three reasons 1. It was made in affirmance of the Canon Law 2. It was made for the ease of the People and Subjects and for the maintenance of the Iurisdiction of the Ordinary so as the Subjects have benefit by the Act and therefore although that the King may dispence with the penalty yet the Subject greived shall have a Prohibition And the Rule of the Court was Fiat Prohibitio Curiae Cantuar. de Arcub Inter partes praedict per Curiam And Sherly and Harris Iunior Serjeants at Law were of Councell in the Case III. Mich. 6 Jacobi Regis Edwards Case THe high Commissioners in Causes Ecclesiasticall objected divers High Commission Articles in English against Thomas Edwards dwelling in the City of Executer 1. That Mr. John Walton hath been many yeares trained up in Learning in the Vniversity of Oxford and there worthily admitted to severall degrees of Schools and deservedly took upon him the degree of Doctor of Physick 2. That he was a Reverend and well practised man in the Art of Physick 3. That you the said Thomas Edwards are no Graduate 4. That you knowing the Premisses notwithstanding you the said Edwards c. of purpose to disgrace the said Dr. Walton and to blemish his Reputation Learning and Skill with infamy and reproach did against the Rules of Charity write and send to the said Mr. Doctor Walton a lewd and ungoodly and uncharitable Letter and therein tared him of want of Civility and Honesty and want of Skill and Iudgment in his Art and Profession c. And you so far exceeded in your immoderate and uncivill Letter that you told him therein in plaine termes He may be crowned for an Asse as if he had no manner of skil in his Profession and were altogether unworthily admitted to the said Degrees and therein you purposely and advisedly taxed the whole Vniversity of rashnesse and indiscretion for admitting him to that Degree without sufficiency and desert 5. And further to disgrace the said Mr. Doctor Walton in the said Vniversity did publish a Copy of the said Letter to Sir William Courtney and others and in your Letter was contained Sipsilam lichenen mentegram Take that for your Inheritance and thank God you had a good Father And did not you thereby covertly mean and imply That the Father of the said Dr. Walton being late Bishop of Exeter and a Reverend Prelate of this Land was subject to the Diseases of the French Pox and Leprosie to the dislike of the Dignity and Calling of Bishops 6. That in another Letter you sent to Mr. Doctor Maders Doctor of Physick you named Mr. Doctor Walton and made a Horn in your Letter And we require you upon your Oath to set down whether you meant not that they were both Cuckoulds and what other meaning you had 7. You knowing that Dr. Walton was one of the high Commission in the Dioces of Exeter and having obtained a Sentence against him in the Star-Chamber for contriving and publishing of a Libell did triumphingly say That you had gotten on the hipp a Commissioner for Causes Ecclesiasticall in the Dioces of Exeter which you did to vilifie and disgrace him and in him the whole Commission Ecclesiasticall in those parts Lastly That after the Letter missive sent unto you you said arrogantly That you cared not for any thing that this Court can do unto you nor for their censure for that you can remove this matter at your pleasure And this Term it was moved to have a Prohibition in this Case And the matter was well argued And at last it was resolved by Coke chief Iustice Warberton Daniel and Foster Iustices That the first six Articles were meer Temporall concerning Doctor Walton in his Profession of Physick and so touched the Temporall person and a temporall matter and in truth It is in the nature of an Action upon See Book of Entries 444. 447. Non est Juri consentanium quod quis super iis quo rum cognitio ad nos pertinet in Curia Christianitatis trahatur in placita vi Stat. Circumspecte agatis An. 13. E. 1. Episcopus teneat plicita in Curia Christianitatis de his quae sunt mere Spiritualia Et vi Linwood f. 70. Lit. m. dicuntur mere Spiritualia quia non habent mixturam Temporalem vi 22 E. 4. l. Consultat vi 22 E. 4 the Abbot of Sion case the Case for Scandall in his Profession of Physick And yet the Commissioners themselves do proceed in the same Ex Officio And it was resolved that as for them a Prohibition doth lye for divers causes 1. Because that the matter and persons are Temporall 2. Secondly Because it is for Defamation which if any such shall be for the same it ought to begin before the Ordinary because it is not such an Enormous Offence which is to be determined by the high Commissioners And for the same reason Suit doth not lye before them for calling the Doctor Cuckould as it was objected in the seventh Article And it was said that the high Commissioners ought to incur the danger of Premunire 2. It was resolved That the Ecclesiasticall Iudge cannot examine any man upon his Oath upon the intention and thought of his Heart for Cogitationis penam nemo emoret And in cases where a man is to be examined upon his Oath he ought to be examined upon Acts or words and not of the intention and thought of his heart and if every man should be examined upon his Oath what opinion he holdeth concerning any point of Religion he is not bound to answer the same for in time of danger Quis modo tutus erit if every one should be examined of his thoughts And so long as a man doth not offend neither in act nor in word any Law established there is no reason that he should be examined upon his thought or Cogitation For as it hath been said in the Proverb Thought is free And therefore for the sixth and seventh Articles they were resolved as well for the matter as for the form in offering to examine the Defendant upon his Oath of his intention and meaning were such to which the Defendant was not to be compelled to answer Ergo It was resolved that as to the Article he might justifie the same because as it appeareth upon his own shewing that the Doctor was sentenced in the Star-Chamber Also the Libell is matter meer Temporall and if it
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
surmise that he had divided his Tythes and that the Plaintiff ought to sue in the Spiritual Court for the double value and at the Common Law for the treble value And it was objected That when the Owner of the Corn divides them then they are become Lay-Chattels for the taking of which an Action lieth at the Common Law and therefore after severance from the nine parts the Parson shall not sue for them in the Spiritual Court But it was resolved by the whole Court That the said division or severance mentioned in the Libel was not any division or severance within the Statute of 2 E. 6. cap. 13. For the same Act provides That every of the Kings Subjects shall from henceforth truly and justly without fraud or guile divide set out yeild and pay all manner of other prediall Tithes in their proper Land so as when he divides them to the purpose to carry them away he doth not divide them justly and truly without fraud or guile but here is fraud and guile and no way a just division and therefore the same is out of the Statute for the makers of the Statute respect quo animo he divides them scil with a mind and intention that the Parson carry them away as in right be ought or with a mind and intention that he himself carry them away which he ought not Quia fraus dolus alicui prodesse aut simplicitas alicui obesse non debet And the same is Crimen Stellionatum which we call fraudem rem imposteram And where the words of the Statute are divided set out c. their prediall Tithes c. And if any person carrieth away his Corn and Hay and his and their prediall Tithes c. And to make an evasion out of these words this Invention was devised the Owner of the Corn by Covin sold his Corn before severance to another who as Servant to the Vendee reaped the Corn and carried away the Corn without any severance pretending that neither the Vendee because he did not carry them away nor the Vendor because he had no property in them for he did not carry away his Corn or his prediall Tithes should be within that Statute But it was resolved that the Vendor should be charged in that case with the penalty of the Statute for he carrieth them away and his fraud and covin should not help him or availe him See 8 E. 3. 290. A reall Action brought by a man of Religion by Collusion although that he hath right yet he shall not have execution 9 H. 6. 41. A recovery upon a good Title by Collusion shall not abate the Writ 33 H. 6. 5. A sale in open Market by Covin shall not bind the property of a stranger But it was resolved That the Plaintiff could not sue in the Spirituall Court for the treble value but for the double value that he might IX Hill 6 Jacobi In the Common Pleas. Neale and Rowses Case AT a Nisi prius in London before my self this Term the Case was Extortion Stat. 21 H. 8. cap. 5. this Edward Neale informed upon the Statute of 21 H. 8. cap. 5. which Plea begun Mich. 6 Jac. Rot. 1031. against James Rowse Commissary and Officiall within the Archdeaconry of Huntington within the Dioces of Lincoln and having probat of Wills and Testaments c. within the same Archdeaconry And that Nicholas Neale the third year of the Raign of the King that now is made his Testament and last Will in writing and made the Plaintiff his Executor and died possessed of Goods and Chattells to the value of a hundred and fifty pounds The Defendant then Commissary and Officiall c. the twenty third of Febr. 1605. at the Parish of S. Mary Bow Testament praedict probavit insinuavit registravit sigillavit ac per manus cujusdem Thomae Nicke tunc ministri ipsius Jacobi Rowse in ea parte deputat authorizat 14. s. 10 d. pro probatione insinuatione registratione Testamenti praedict de eodem Edwardo c. qui tam c. Colore Officii sui praedict ad tunc ibidem extortive recepit habuit contra formam statuti praedict with this that the said Edward qui tam c. will add That the writing of the said Testament according to the rate of a peny for every ten Lines of the said Testament every line thereof containing in length ten Inches non attingebat to the summe of twelve shillings four pence according to the form of the Statute aforesaid c. The Defendant pleaded Nihil debet And at the Nisi prius the Evidence of two Witnesses was That the Plaintiff caused the said Testament which was in Paper to be ingrossed in Parchment And the Plaintiff offered both to the said Rowse the Officiall to be proved and he answered That he would prove it if his Fees shall be paid to him And the Plaintiff asked him what were his Fees and he wrote them in a paper which amounted to fourteen shillings ten pence for the Probat insinuation Registring and sealing And thereupon the Plaintiff layed upon the Table twenty shillings and desired him to take as much as was due to him and all that was in the house of the Officiall But he would receive nothing there but appointed the Plaintiff to come in Court where he would receive his Fees and accordingly the Plaintiff came to him in Court and prayed to have the said Will proved And the Defendant required the said Nicke his Minister to take of him for the probation insinuation registring and sealing fourteen shillings ten pence and thereupon he put the Seale of his Office to the said Parchment ingrossed which the Plaintiff brought with him and which he delivered to the Defendant And it was objected That this Case was out of the said Statute for thereby as to this purpose it is provided viz. And where the Goods of the Testator c. amount above the value of forty pounds That then the Bishop nor Ordinary by him or themselves nor any of his or their Registers Scribes Praysers Summoners Apparators or any other their Ministers for the probation insinuation and approbation of any Testament or Testaments c. for the registring sealing writing praysing making of Inventories making Acquittances Fines or any thing concerning the same Probate of Testaments shall take or cause to be taken of any person or persons but only four shillings and not above whereof to the Bishop ordinary c. for him and his Ministers two shillings six pence and not above and two shillings six pence to the Scribe for Registring of the same c. And it was objected by the Councell of the Defendant that the Defendant did not take the fourteen shillings ten pence for the probation insinuation registring or sealing of the Testament for no Probat was written upon the Testament it self nor any Seale put to it but the Testament was ingrossed in Parchment and the Probat
Borough c. and that the City of London is taxed to 618 l. 3 s. 5 d. the City of Norwich to 8 l. 6 s. 11 d. the City of Canterbury to 53 l. 13 s. 3 d. ob Norfolk 285 l. 6 s. 10 d. Suffolk 1214 l. 5 s. 4 d. ob c. The sum of all the sums then expressed is 31648 l. whereof allowable for Fees and Wages of Commissioners and Collectors 651 l. 16 s. 2 d. and so remaineth 31006 l. 4 s. and 10 d. Note that the Vniversities of Cambridg and Oxford and the Colledg of Eaton be excepted See Rot. 30. H. 3. ex parte reman Dom. Thesaur in Scemino in auxilio nobis concess ad primogenitam siliam nostram maritand And note that King Henry the third had Ayd granted to him in Parliament ad Isabellam sororem suam Imperatori maritand but that was of Benevolence Rot. 42. H. 3. ibid. 6 Monstrat R. Johannes le Francois Baro de Scaccario quod cum Dominus Rex non caperet nisi 20 s. de integro feodo militis de auxilio ad primogenitam filiam suam maritand Radol fil Rad. fil Mich. injuste exegit de eodem 30 s. ad primogenitam filiam suam maritand pro duabus partibus unius feodi militis averia sua cepit eadetinet Et ideo mandatum est Vic. Com. Bedd Buck. quod venire faciant c. praedict R. ad respondendum eidem Johanni de praedict transgressione praedict averio c. So as it appeareth by this that some held that the Statute of Westm 1. aforesaid was but a confirmation of the Common Law and that the King also ought not to take more but that was doubted Ibid. in Regno 2 E. 1. Rot. 3. de auxilio ad militiam which is meant of Knight of the Kings Son in the time of Henry the third Isabella Comitissa Albermarte perdonata 116 l. 8 s. 7 d. pro eodem auxilio quia Boldwinus de Insula fratre ejus cujus haeres ipsa est fuit infra aetatem in custodia ejus quia tenentes dictae Isabellae onerentur per servitium militare de praedict pecuniis Note that that was before the Statute of West 1. and by that it appeareth That if one within age be in Ward of the King he shall not be contributary to Ayd but his Tenants which hold of him and then held of the King by reason of Ward shall pay Ayd unto the King as it appeareth by that Record Ibid. 30 E. 1. Rex dilectis fidelibus Vic. Kauc Rico. de R. salutem Sciatis quod in primo die Junii anno Regni nostri 18. Praelati Comites Barones caeteri Magnates de regno nostro conceditur pro fe tota communitate ejusdem Regni in pleno Parliamento nostro nobis concesserunt 40 s. de singulis feodis militum in dicto Regno ad auxilium Note that this double charge was in respect that they were discharged of any contribution for Socage which I conceive was for the difficulty to finde the Socage Tenure ad primogenitam filiam nostram maritand levandos sicut hujusmodi auxilium alias in casu consil levari consuevit cui quidem levationi faciend pro dicta communitatis easiamento hucusque supersedimus faciend gratiose assignavimus vos ad praedictum auxilium c. Note that his eldest Daughter was marryed to the Earl of Bar. Ibid. T. R. 34 E. 1. De auxilio concesso ad militiam filii Regis Ibid. Hill 4 H. 4. Rot. 19. de rationabili auxilio de Will. Domino Roos for the marriage of Blanch the Kings eldest Daughter out of the Mannor of Wragby in the County of Lincoln The like M. Rot. 5. H. 4. Rot. 33. Lincoln and Rot. 34. Lincoln and Rot. 35. Lincoln and Tr. R. 5. H. 4. Rot. 2. Kauc and Rot. 3. Kauc and Rot. 5. Kauc See ibid. P. R. 21 E. 3. Rot. Cantab. de auxilio ad filium Regis primogenitum faciend per Episcopum Eliensem by which it appeareth that a Bishop for his Lands which he holdeth by Knights service or Socage shall pay Ayd but those who hold by Frankalmoign or by Divine service shall not pay Ayd as before is said See ibid. 20 E. 3. Rot. 13 and 14. de auxiliando ad primogenitum filium Regis militem faciend and Collectors thereupon appointed By all which before cited it appeareth that Tenure in Burgage is subject to the payment of Ayd And note that a great part of London was Abby or Chauntry Land and the Lands of persons attainted and all those which are immediately holden of the King by Knights service or in Socage shall be contributary to the payment of Ayd c. XI Hill 6 Jacobi Regis Prohibitions UPon Wednesday being Ashwednesday the _____ day of February 1606. A great Complaint was made by the President of York unto the King That the Iudges of the Common Law had in contempt of the Command of the King the last Term granted sixty or fifty Prohibitions at the least out of the Common-Pleas to the President and Councel of York after the sixth day of February and named three in particular scil between Bell and Thawptes another between Snell and Huet and another in an Information of a Riotous Rescue preferred by English Bill by the Attorny General against Christopher Dickenson one of the Sheriffs of York and divers others in rescuing of one William Watson out of the Custody of the Deputy of one of the Pursuivants of the same Councel who had arrested the said Watson by force of a Commission of Rebellion awarded by the President and Councel which Prohibition in the said Information was as was affirmed denyed upon a motion made in the Kings Bench the last Term and yet granted by us And the King sent for me to answer to that Complaint and I onely all the rest of the Iustices being absent waited upon the King in the Chamber neer the Gallery Who in the presence of Egerton Lord Chancellor the Earl of Salisbury Lord Treasurer the Lord of Northampton Lord Privy Seal the Earl of Suffolk Lord Chamberlain the Earl of Worcester the Archbishop of Canterbury the Lord Wotton and others of his Councel rehearsed to me the Complaint aforesaid and I perceived well that upon the said Information he had conceived great displeasure against the Iudges of the Common Pleas and chiefly against me To which I having the Copy of the Complaint sent to me by the Lord Treasurer the Sabbath day before answered in this manner That I had with as much brevity as the time would permit made search in the Offices of the Preignothories of the Common Pleas and as to the said Cases between Bell and Thawptes and Snell and Huet no such could be found but my intent was not to take advantage of a Misprisal and the truth was that the sixth day of February the Court of Common Pleas had granted a Prohibition
do extend to the nature of all the Offences mentioned in the first and second Branches But if one forge a Writing in 37. of Eliz. and afterwards he forge another in 38. of Eliz. yet it is not Felony although that he forgeth many Writings one after the other for by the expresse words of the Act it is not Felony The Forgery c. which is Felony by the Act ought to be after conviction or condemnation of a former Writing As to the third doubt it was resolved That the allegation of the time by the Plaintiff in the Bill shall not alter the Offence but shall give unto the Court Iurisdiction but if it appeareth to the Court that the Forgery or Publication was after the Sentence then the Court shall surcease As to the last Point it was resolved that the time of the Forgery is not materiall be it before or after the Offence in truth committed if it be committed before the exhibiting of the Bill but if the date of the Writing supposed to be forged had been mistaken there the Defendant could not be condemned of a Deed of another date for that is not the Offence complained of in the Bill of which the Court can give Sentence XIV Pasch 7. Jacobi Regis The Case of Sewers THe Case was That there was a Cawsey or Milstanke of Stone in the River of Dee and City of Chester which Cawsey before the Raign of King Edward the first was erected for the necessary maintenance of certain Mills some of the Kings and others of the Subjects at the end of the said Cawsey and now a certain Decree was made by certain Commissioners of Sewers for a breach to be made by ten Poles in length in the said Cawsey which Cawsey as it was admitted by both parties was errected before the Raign of King Edward the first and so hath continued untill this day without any exaltation or inhancing and if by any Decree of the Commissioners by force of any Statute any breach may be made in that Cawsey was the Question And it was referred by the Letters of the Lord of the Privy Councell to the two cheif Iustices and the chief Baron and upon hearing of Councell learned at divers daies and good consideration had in the time of the last Vacation of all the Statutes concerning Sewers and upon conference had amongst themselves it was resolved as followeth 1. Whereas it is provided by the Statute of Magna Charta cap. 23. Quod omnes Kidelli deponantur de cetero per Thamesiam Medeweiam per totam Angl. nisi per Costeram Maris It was resolved That that Stat. extended only to Kidells sc open Wares for taking of Fish but the first Statute which extended to pulling down or abating of any Mills Mill-stankes and Cawseys was the Statute of 25 E. 3. cap. 4. which Act appointed such only to be thrown down or abated which were levied or erected in the Raign of King Edward the first or after But by the Statute made An. 1 H. 4. cap. 12. upon complaint in Parliament of the great damages which have risen by the outrageous inhansing of Mills Mill-stanks and other impediments made and erected before the Raign of King Edward the first The said old Mills and Mill-stanks were appointed by Act then made to be surveyed and such as were found to be much inhansed to be corrected and amended saving alwaies reasonable substance of such Mills Mill-stanks Wears c. so in old time made and levied None of which Acts extended to tho Case in question For that Cawsey was erected before the Raign of Edward the first and never exalted or inhansed after the errection of it And the statute of 12 H. 4. cap. 7. doth confirm all the said Acts and by them the generality of the Act of Magna Charta is restrained as by the said Acts appeareth And by the statute of 23 H. 8. cap. 5. None of the said Acts as to the Case in question is repealed for first the same Act appoints the manner form tenor and effect of the Commission of Sewers by which power is given to the Commissioners to survey Walls c. Fences Cawseys c. Mills c. and then to correct repair amend pull down or over throw or reform as cause requireth according to their wisdomes and discretions and therein as well to ordain and do after the form tenor and offect of all and singular the Statutes and Ordinances made before the first of March in the twenty third year of Henry the eighth as also to enquire by the Oathes of honest and lawfull men c. through whose default the said hurts and damages have happened c. By which it appeareth That the discretion of the Commissioners was limited scill to proceed according to the statutes and Ordinances before made c. And also to reform repair and amend the said Walls c. by force of that word said hath relation to the precedent purview of the Act c. And further to reform prostrate and over-throw all such Mills c. and other impediments and annoyances aforesaid as shall be found by Inquisition or by your survey and discretion to be excessive i. e. hurtfull which word aforesaid refers that clause also to the precedent purview scil such immpediments and annoyances as are against the Statutes and Ordinances before made Also it is further provided by the same Act That all and every Statute Act and Ordinance heretofore made concerning the Premisses or any of them not being contrary to this present Act nor heretofore repealed shall from henceforth stand and be good and effectuall for ever But the said Acts of 25 E. 3 and 1 H. 4. are not contrary to any clause of that Act nor were repealed before And alwaies such construction ought to be made that one part of the Act may agree with another and all to stand together and if they had intended a repeal of the said former Acts they would not have repealed them by such generall and doubtfull words when they concerned the Inheritances of many Subjects and according to this resolution we certified the Lords of the Councell that the said Statutes of 25 E. 3. and 1. of H. 4. remained yet in force and that the Authority given by the Commission of Sewers did not extend to Mills Mill-stanks Cawseys c. errected before the Raign of King Ed. 1. unlesse that they have been inhaunsed and exalted above their former height and thereby made more prejudiciall c. In which case they are not to be overthrown or subverted but to be reformed by abating the excesse and inhaunsment only Trinit 7 Jacobi Regis XIV The Case De Modo Decimandi and of Prohibitions debated before the Kings Majesty RIchard Archbishop of Canterbury accompanyed with the Bishop of London the Bishop of Bathe and Wells the Bishop of Rochester and divers Doctors of the Civil and Canon Law as Dr. Dunn Iudg of the Arches Dr. Bennet
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
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
the plea for the same is no part of the suggestion which onely is the substance of the plea and therefore the Modus Decimandi is proved by two Witnesses according to the Statute of 2 E. 6. cap. 13. and not the refusal which proveth that the Modus Decimandi is onely the matter of the suggestion and not the refusal 5. All the said five matters of Discharge of Tythes mentioned in the said Branch of the Act of 2 E. 6. being contained within a suggestion ought to be proved by two Witnesses and so have been always from the time of the making of the said Act and therefore the Statute of 2 E. 6. clearly intended that Prohibitions should be granted in such causes 6. Although that they would allow bona fide de Modo Decimandi without refusal yet if the Parson sueth there for Tythes in kinde when the Modus is proved the same being expresly prohibited by the Act of 2 E. 6. a Prohibition lieth although the Modus be spiritual as appeareth by the said Book of 4 E. 4. 37. and other the Cases aforesaid And afterwards in the third day of debate of this case before his gracious Majesty Dr. Bennet and Dr. Martin had reserved divers consultations granted in Causa Modi Decimandi thinking that those would make a great impression in the Opinion of the King and thereupon they said That Consultations were the Iudgments of Courts had upon deliberation whereas Prohibitions were onely granted upon surmises And they shewed four Presidents One where three joyntly sued a Prohibition in the case of Modo Decimandi and the Consultation saith Pro eo quod suggestio materiaque in eodem contenta minus sufficiens in Lege existit c. 2. Another in Causa Modo Decimandi to be payd to the Parson or Vicar 3. Where the Parson sued for Tythes in kinde and the Defendant alledged Modus Decimandi to be payd to the Vicar The fourth where the Parson libelled for Tythe Wool and the Defendant alledged a custom to reap corn and to make it into sheaves and to set forth the tenth sheaf at his charges and likewise of Hay to sever it from the nine cocks at his charge in full satisfaction of the Tythes of the Corn Hay and Wool To which I answered and humbly desired the Kings Majesty to observe that these have been reserved for the last and center point of their proof And by them your Majesty shall observe these things 1. That the Kings Courts do them Iustice when with their consciences and oaths they can 2. That all the said Cases are clear in the Iudgment of those who are learned in the Laws that Consultation ought by the Law to be granted For as unto the first president the case upon their own shewing appeareth to be Three persons joyned in one Prohibition for three several parcels of Land each of which had a several manner of Tything and for that cause they could not joyn when their interests were several and therefore a Consultation was granted As to the second president The manner of Tything was alledged to be payd to the Parson or Vicar which was altogether uncertain As to the third president The Modus never came in debate but whether the Tythes did belong to the Parson or Vicar which being betwixt two spiritual persons the Ecclesiastical Court shall have Iurisdiction and therewith agreeth 38 E. 3. 6. cited before by Bacon and also there the Prior was of the Order of the Cistertians for if the Tythes originally belonged to the Parson any recompence for them shall not bar the Parson As unto the last president the same was upon the matter of a Custom of a Modus Decimandi for Wool for to pay the Tythe of Corn or Hay in kinde in satisfaction of Corn Hay and Wool cannot be a satisfaction for the Wool for the other two were due of common right And all this appeareth in the Consultations themselves which they shew but understand not To which the Bishop of London said that the words of the Consultation were Quod suggestio praedicta materiaque in eadem contenta minus sufficiens in Lege existet c. so as materia cannot be referred to form and therefore it ought to extend to the Modus Decimandi To which I answered That when the matter is insufficiently or uncertainly alledged the matter it self faileth for matter ought to be alledged in a good sentence and although the matter be in truth sufficient yet if it were insufficiently alledged the plea wanteth matter And the Lord Treasurer said openly to them that he admired that they would alledg such things which made more against them then any thing which had been said And when the King relied upon the said Prohibition in the Register when Land is given in discharge of Tythes the Lord Chancellor said that that was not like to this case for there by the gift of the Land in discharge of Tythes the Tythes were actually discharged but in the case De Modo Decimandi an annual sum is payd for the Tythes and the Land remains charged with the Tythes but ought to be discharged by plea de Modo Decimandi All which was utterly denyed by me for the Land was as absolutely discharged of the Tythes in casu de Modo Decimandi when an annual sum ought to be payd as where Land is given For all the Records and presidents of Prohibition in such cases are That such a sum had been always c. payd in plenam contentationem satisfactionem exonerationem omnium singularium Decimarum c. And although that the sum be not payd yet the Parson cannot sue for Tythes in kind but for the mony for as it hath been said before the Custom and the said Acts of Parliament where there is a lawful manner of Tything hath discharged the Lands from Tythes in kinde and prohibited that no suit shall be for them And although that now as it hath been said the Parsons c. may sue in the Spiritual Court pro Modo Decimandi yet without question at the first the annual payment of mony was as Temporal as annual profits of Lands were All which the King heard with much patience And the Lord Chancellor answered not to that which I had answered him in c. And after that his most excellent Majesty with all his Councel had for three days together heard the allegations on both sides He said That he would maintain the Law of England and that his Iudges should have as great respect from all his Subjects as their predecessors had had And for the matter he said That for any thing that had been said on the part of the Clergy that he was not satisfied and advised us his Iudges to confer amongst our selves and that nothing be encroached upon the Ecclesiastical Iurisdiction and that they keep themselves within their lawful Iurisdiction without unjust vexation and molestation done to his Subjects and without delay or hindering
his Deed indented dated the 22 of December in the first year of King James made between him of the one part and the said John Sammes and George Sammes Son and Heir apparent of the said John of the other part did bargain sell grant enfeoff release and confirm unto the said John Sammes the said Mead called Grany Mead to have and to hold the said Mead unto the said John Sammes and George Sammes and their Heirs and Assigns to the onely use and behoof of the said John Sammes and George Sammes their Heirs and Assigns for ever and by the same Indenture Sir Thomas did covenant with John and George to make further assurance to John and George and their Heirs to the use of them and their Heirs and Livery and Seisin was made and delivered according to the true intent of the said Indentures of the within mentioned premisses to the uses within mentioned John Sammes the Father dyeth George Sammes his Son and Heir being within age the Question was Whether George Sammes should be in Ward to the King or no And in this case three points were resolved 1. For as much as George was not named in the premisses he cannot take by the Habendum and the Livery made according to the intent of the Indenture doth not give any thing to George because the Indenture as to him is voyd but although the Feoffment be good onely to John and his Heirs yet the use limited to the use of John and George and their Heirs is good 2. If the Estate had been conveyed to John and his Heirs by the Release or Confirmation as it well may be to a Tenant by Copy of Court Roll the use limited to them is good for upon a Release which creates an Estate a use may be limited or a Rent reserved without question but upon a Release or Confirmation which enures by way of Mitter le droit an use cannot be limited or a Rent reserved But the third was of greater doubt If in this case the Father and Son were Ioynt-tenants or Tenants in common For it was objected when the Father is onely enfeoffed to the onely use of him and his Son and their Heirs in the Per that in this case they shall be Tenants in common By the Feoffment the Father is in by the common Law in the Per and then the limitation of the use to him and his Son and to their Heirs cannot devest the Estate which was vested in him by the common Law out of him and vest the Estate in him in the Post by force of the Statute according to the limitation of the use and therefore as to one moyety the Father shall be in by force of the Feoffment in the Per and the Son as to the other moyety shall be in by force of the Statute according to the limitation of the use in the Post and by consequence they shall be Tenants in common But it was answered and resolved That they were Ioynt-tenants and that the Son in the Case at Bar should have the said Grange by the Survivor for if at the common Law A. had been enfeoffed to the use of him and B. and their Heirs although that he was onely seised of the Land the use was joyntly to A. and B. For a use shall not be suspended or extinct by a sole seisin or joynt seisin of the Land and therefore if A. and B. be enfeoffed to the use of A. and his Heirs and A. dyeth the entire use shall descend to his Heir as it appeareth in 13 H. 7. 6. in Stoners Case and by the Statute of 27 H. 8. cap. 10. of Vses it appeareth That when several persons are seised to the use of any of them that the Estate shall be executed according to the use And as to that which was said That the Estate of the Land which the Father hath in the Land as to the moyetyof the use which he himself hath shall not be devested out of him To that it was answered and resolved That that shall well be for if a man maketh a Feoffment in Fee to one to tho use of him and the Heirs of his body in this case for the benefit of the issue the Statute according to the limitation of the uses devests the Estate vested in him by the common Law and executes the same in himself by force of the Statute and yet the same is out of the words of the Statute of 27 H. 8. which are Where any person c. stand or be scised c. to the use of any other person and here he is seised to the use of himself and the other clause is Where divers and many persons c. be joyntly seised c. to the use of any of them c. and in this case A. is sole seised But the Statute of 27 H. 8. hath been always beneficially expounded to satisfie the intention of the parties which is the direction of the uses according to the Rule of the Law So if a man seised of Lands in Fee-simple by Deed covenant with another that he and his Heirs will stand seised of the same Land to the use of himself and the Heirs of his body or unto the use of himself for life the remainder over in Fee in that case by the operation of the Statute the Estate which he hath at the common Law is devested and a new Estate vested in himself according to the limitation of the use And it is to be known that an use of Land which is but a pernency of the profits is no new thing but part of that which the owner of the Land had and therefore if Tenant in Borrough-English or a man seised of the part of his Mother maketh a Feoffment to another without consideration the younger Son in the one case and the Heir on the part of the Mother on the other shall have the use as they should have the Land it self if no Feoffment had been made as it is holden in 5 E. 4. 7. See 4 and 5 Phil. and Mar. Dyer 163. So if a man maketh a Feoffment unto the use of another in tayl and afterwards to the use of his right Heirs the Feoffor hath the Reversion of the Land in him for if the Donee dyeth without isse the Law giveth the use which was part of the Land to him and so it was resolved Trinity 31 Eliz. between Fenwick and Milford in the Kings-Bench So in 28 H. 8. Dyer 11. the Lord Rosses Case A man seised of one Acre by Priority and of another Acre by Posteriority and makes a Feoffment in Fee of both to his use and it was adjudged that although both pass at one instant yet the Law shall make a Priority of the uses as if it were of the Land it self which proves that the use is not any new thing for then there should be no Priority in the Case See 13 H. 7. b. by Butler So in the Case at Bar The use limited to
same but they estreat the same into the Exchequer which hath power by the Law to writ forth Proces to the Sheriff to levy the same But if a man be convicted in the Star-Chamber for Forgery upon the Statute of 5 Eliz. that in that case for the double costs and damages that an English Writ shall be made directed to the Sheriff c. reciting the conviction and the Statute for the levying of the said costs and damages of the goods and chattels and profits of the Lands of the Defendant and to bring in the mony into the Court of Star-Chamber and the Writ shall be sealed with the great Seal and the Test of the King For the Statute of 5 Eliz. hath given Iurisdiction to the Court of Star-Chamber and power to give Iudgment amongst other things of the costs and damages which being given by force of the said Act of Parliament by consequence the Court by the Act hath power to grant Execution Quia quando aliquid conceditur ei omnia concedi videntur per quod devenitur ad illud And it was resolved That the giving of the damages to the Plaintiff was begun but of late times and although that one or two Presidents were shewed against this Resolution they being against the Law the Iudges had not any regard to them The like Resolution was in the Case of Langdale in that Court XXXI Hillary Term 7 Jacobi Regis In the Common-Pleas Morse and Webbs Case IN a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of November in the third year of the Reign of the King that now is in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conusance because that the place where is an Acre of Land which is the Freehold of the said William Sherington and for damage-feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land in parcel of Downfield and that he himself at the time and before the taking c. was and yet is seised of two yard Land with the appurtenances in Luddington aforesaid And that he and all those whose Estate he hath in the said two yards of Land time out of minde c. have used to have Common of pasture per totam contentam of the said place called the Downfield whereof c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep at certain times and seasons of the year as to the said two yards Lands with the appurtenances appertaining and that he put in the said two Oxen to use his Common c. And the Defendant did maintain his Avowry and traversed the Prescription upon which the parties were at issue and the Iury gave a special Verdict That before the taking one Richard Morse Father of the said John Morse and now Plaintiff whose Heir he is was seised of the said two yards Lands and that the said Richard Morse c. had the Common of Pasture for the said Cattel per totum contentum of the said Downfield in manner and form as before is alledged and so seised The said Richard Morse in the twentieth year of Queen Elizabeth demised to William Thomas and John Fisher divers parcels of the said two yards Lands to which c. viz. the four Buts of arable with the Common and intercommon to the same belonging for the term of four hundred years by force of which the said William Thomas and John Fisher entered and were possessed and the said Richard so seised dyed thereof seised by which the said two yards Lands in possession and Reversion descended to the said John Morse the now Plaintiff And if upon the whole matter the said John Morse now hath and at the time of the taking c. had Common of Pasture c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep c. as to the said two Acres of Land with the appurtenances belonging in Law or not the Iury prayed the advice of the Court. Note that this Plea began Trin. 5 Jacobi Rot. 1405. And upon Argument at the Bar and at the Bench it was resolved by the whole Court that it ought to be found against the Defendant who had traversed the Prescription For although that all the two years Lands had been demised for years yet the Prescription made by the Plaintiff is true for he is seised in his Demesn as of Fee of the Freehold of the two yards of Land to which c. And without question the Inheritance and Freehold of the Common after the years determined is appendant to the said two yard Lands and therefore clearly the issue is to be found against the Defendant But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in evidence 2. It was resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shall have Common Rateable and in such manner that the Land in which c. shall not be surcharged and if so small a parcel be demised which will not keep one Ox nor a Sheep then the whole Common shall remain with the Lessor so always as the Land in which be not surcharged 3. It was resolved That Common appendant unto Land is as much as to say Common for Cattel levant and couchant upon the Land in which c. So that by the severance of part of the Land to which c. so prejudice can come to the Ter-tenant in which c. 4. See the Case of in the fourth part of my Reports fo was affirmed for good Law and there is no difference when the Prescription is for Cattel levant and couchant and for a certain number of Cattel levant and couchant But when the Prescription is for Common appurtenant to Land without alledging that it is for Cattel levant and couchant there a certain number of the Cattel ought to be expressed which are intended by the Law to be levant and couchant XXXII Hill 7 Jacobi Regis In the Common-Pleas Hughes and Crowthers Case IN a Replevin between Robert Hughs Plaintiff and Richard Crowther Defendant which began Trin. 6 Jacobi Rot. 2220 The Case was that Charls Fox was seised of six acres of Meadow in Bedston in the County of Salop in Fee and 10 Octob. 9 Eliz. leased the same to Charls Hibbens and Arthur Hibbens for 60 years if the aforesaid Charls Hibbens and Arthur Hibbens should so long live and afterward Charls died and if the Lease determine by his death was the Question and it was adjudged That by his death the Lease was determined for the life of a man is meer collaterall unto the Estate for years otherwise it is if a
the said Act in such case the Appeal was to Rome immediately XXXV Mich. Term 5 Jacob. Rot. 30. In the Kings-Bench Prichard and Hawkins Case JOhn Prichard brought an Action upon the Case against Robert Hawkins for slanderous words publishèd the last day of August in the third year of the King viz. That Prichard which serveth Mistris Shelley did murder John Adams Childe Quandam Isabellam Adams modo defunct filiam cujusdem Johannis Adams of Williamstre in the County of Glocester innuendo upon which a Writ of Error was brought in the Exchequer Chamber upon a Iudgment given for Prichard in the Kings-Bench and the Iudgment was reversed in Easter Term 7 Jacobi because that it doth not appear that Isabel was dead at the time of the speaking the words for tunc defunct ought to have been in the place of modo defunct XXXVI Easter Term. 8 Jacobi In the Kings-Bench Dison and Bestneys Case HUmphrey Dison said of Nicolas Bestney utter Barester and Councellor of Grays-Inn Thou a Barester Thou art no Barester thou art a Barretor Thou wert put from the Bar and thou darest not shew thy self there Thou study Law Thou hast as much wit as a Daw. Vpon Not-guilty pleaded the Iury found for the Plaintiff and assessed damages to 23 l. upon which Iudgment was given and in a Writ of Error in the Exchequer Chamber the Iudgment was affirmed XXXVII Easter Term 8 Jacobi Regis In the Kings-Bench Smith and Hills Case NOah Smith brought an Action of Assault and Battery against Walter Hill in the Kings-Bench which began Pasc 7 Jacobi Rot. 175. upon Not-guilty pleaded a Verdict and Iudgment was for the Plaintiff and 107 l. assessed for damages and costs In a Writ of Error brought in the Exchequer Chamber the Error was assigned in the Venire facias which was certified by Writ of Certiorari and upon the Writ no Return was made upon the back of the Writ which is called Returnum album and for that cause this Easter Term the Iudgment was reversed XXXVIII Trinity Term 7 Jacobi In the Court of Wards Westcots Case IT was found by a Writ of Diem clausit extremum after the death of Roger Westcot That the said Roger the day that he dyed was seised of and in the moyety of the Mannor of Trewalliard in his Demesn as of Fee and of such his Estate dyed thereof seised and that the moyety of the said Mannor anno 19 E. 3. was holden of the then Prince as of his Castle of Trematon parcel of his Dutchy of Cornwall by Knights-service as it appeareth by a certain exemplification of Trematon for the same Prince made 9 Marcii 19 E. 3. And the words of the Extent were Willielmus de Torr tenet duo feoda dimid militis apud Pick Striklestomb Trewalliard per servitum militare reddit inde per annum 8 d. And it was resolved by the two chief Iustices and the chief Baron That the Office concerning the Tenure was insufficient and voyd because that the Verdict of a Iury ought to be full and direct and not with a prout patet for by that the whole force of their Verdict relyeth onely upon the Extent which if it be false he who is grieved shall have no remedy by any Traverse for they have not found the Tenure indefinite which might be traversed but with a prout patet which makes the Office in that point insufficient and upon that a Melius inquirendum shall issue forth and therewith agreeth F. N. B. 255. that a Melius inquirendum shall be awarded in Inch a Case The NAMES of the CASES CAse of the admiralty 7. Jac. 51. Case of S. Alphage parish in Canterbury 8. Jac. 70. Baron and Boyes case 6. Jac. 18. Case of repairing Bridges c. 7. Jac. 33. Bedell and Shermans case 40. Eliz. 47. Baylyes case 7. Jac. 48. Case in Chancery Hill 27. Eliz. 19. Case in the common Pleas. 6. Jac. 26. Collings and Hardings 39. Eli. 57. Case of Modus decinandi 6. Jac. 12. Case de Modo Decimandi and of prohibitions before the King 7. Jac. 37. Disow and Bestneyes case 8. Jac. 71. Edwards case 6. Jac. 9. Case in ejectione firmae 7. Jac. 58. Hulmes case 7. Jac. 61. Haywards and Sr. Iohn Whitebrookes case 64. Hughes and Crowthers case 7. Iac. 66. Haidon and Smiths case 8. Iac. 67. Muttons case 7. Iac. 59. More and Webs case 7. Iac. 65. Neale and Rowses case 6. Iac. 24. Porters and Rochesters case 6. Iac. 4. Ca. of prohibition 6. Iac. 30. Sir Allen Percies case 7. Iac. 60. Parliaments case 7. Ia. 63. Prichard and Haukins case 5. Iac. 71. Sir William Reades Boothes case 7. Iac. 34. Syrat and Heales case 44. Eliz. 23. Case of sewers 7 Iac. 35. Sparye case 7. Iac. 49. Samms case 7. Iac. 54. Smith and Hils case 8. Iac. 71. Taylor and Moyls case 6. Iac. 11. Willowes case 6. Iac. 1. Case in the court of wards 7. Iac. 48. Case in the Court of wards 7. Iac. 49. Wills case 7. Iac. 50. Westcots case 7. Iac. 72. THE TABLE A Acts of Parliament are parcell of the Law so to be judged by the judges of the Law fol. 4. Acts none may take upon him any act c. but who hath knowledge in the same 12. Apples not contained within the words of Stat. 5. E. 6. 14. against ingrossors 18. 19. Actions of claime to be brought within 5. yeares 21. Aid to the King who to pay it 26. 27. 28. For what 29. 30. Made certaine and when to be paid 25. Admirall his power how far it extends 51. 52. Court of Admiralty no Court of record 53. Avoury where it shall be good and maintaineable 58. B Brewer is within the act of the 5. El. 4. for that none may keepe a common brewhouse unlesse formerly apprentice 11. 12. Burgage tenure what it is 27. Bridges rivers sewers c. who ought to repair them and how compellable to it 33. Boote a saxon word the signification whereof various 68. Boote and estovers signifie all one thing 68. C Copyhold where a Copyholder may deny to pay his fine 2. Canterbury Arch bishop thereof cannot cite one out of his owne Diocese and the reason thereof 5. 6. 7. 8. Commission High commissioners their power and to whom extendible 11. 47. Customes what Customes shall be good and when and what not 12. 13. Customes where the Kings Court shall be ousted of jurisdiction in Modo decimandi and where not 18. Customes and prescriptions to be tryed by the common Law 40. Canon Eccles against the Kings perrogative the common law c. ipso facto voide 47. Common of Pasture who shall have it and who shall be debared and why 66. Common divided shall be rateable so that the land in which c. shal not be surcharged 66. Coppyholders may of common right take House-boote hedge boote Plough-boote upon his coppy hold 68. Shall have an action against his Lord for cutting
downe Timber trees 69. D Dower how a wife may be barred of her dower and for what 19. 20. 21. 22. Where shee shall be indowed and when 20. 22. 23. Damages treble where to be sued for 24. Decimandi modus what it is and by whom to be tryed 37 38 39. 40 Plea of Modus decimandi where good and where not 43. E Error writ of error so annihilates a record as if it had never been 20. What shal be recovered therein 21. 22. Executor summons and severance lyeth in any suite brought as executors 32. Error where amended and where not 54. Error what is sufficient to renue a judgement or confirme it 71. Estopel what and the force thereof 62. F Fine reasonable in Copihold must have a set time for payment 2. It must be reasonable and not excessive 2. 3. 4. By whom to be adjudged 3. What is a reasonable fine and what not 3. Fees what Fees may be taken for proving a will and extortion therein how punishable 24. 25. 26. Forgery what and how punishable 34. 35. H Heire entry of the heire where lawfull 49. I Iudge ecclesiasticall his power to examine upon oath 10. Ioint-tenants and tenants in common the difference betweene them 55 56 57. Ioint-tenants may be seized to answer though they come at unusuall times to it 56. K King Land given to the King discharged of tythes 15 Where the Kings have the mean profits of Land and where not 49. L Lands how they may be discharged of Tythes 15. Land where it shall descend and and where not 50. Law will doe no wronge 21. Law of England how divided 40. Livery where no livery or Ouster le maine shall need to be sued 50. 51. The maner of suing livery and the forme of the writ 62. Lease for yeares to two if they so long live if one dye the leafe is determined 66. M Messuagium Tenementum their difference 48. Manor how a Lord of a Mannor may wrong his Copy-hold tenant 68 Mvlius inquirendum where it lyeth and for what 72. O Office where necessary to be found where not and when it must be found 22. 63. Where it shall be insufficient 50. It shall not be an estopel and the reason thereof 61. P Prohibition when and where it lyeth and against whom 8 9 10. 41 42 43 70. Parishes and townes their bounds triable onely by common law the reason why 17 18. Pirates how when and by whom punishable 53 54. Parliament privileges orders and customes of Parliament onely to be decided in Parliament 63. Processe star-chamber cannot make Processe against either Lands or goods 64. R Â Rex est persona mixta 17. Replevin by whom grantable and for what 31. Rent when it may be divided and upon what occasion 57. Reparations in houses if necessary to be shewed in certaine et contra 68. S Â Statutes to be repealed by none but by statutes 17. Socage tenure what 27. Sewers Commissioners thereof their Power how far and to what it extends 35 36. Seizin where no primer Seizin shal be 50. Severante of part of a reversion looseth not the intire rent 58. Sorcerers and inchanters who and their punishment 59. T Â Tythes how satisfaction may be given in discharge of tythes 14 46. They cannot be altogether taken away 14. Where and how they may be altered into an other thing 15 16. 41. How many waies one may be discharged of tithes and of what payable 16. If divided from the nine parts not to be sued for in Court Ecclesiasticall if it be without fraud 23. Where the right of tithes may be tryed 39. 58. Treason how and by whom punishable 54. Timber trees who may cut them and who may not 60. Trespasse action therein where it lies against whom and for what 69 V Â Vse where a use may be limited where not 55. Who shall have the use 56. W Â Wast what adjudged Wast and where it lieth 61. Wife where a wife shall have an estate for life 49. Wards who shall be a ward to the King 55. 57. Waste who shall be chargeable in a writ of Wast 69. sY Â Yorke the President and councill of Yorke their power how far it extendeth 31. FINIS