MICH. AN. 6 JACOBI REGIS In the Common Pleas.
Willowes Case.

IN Trespasse brought by Richard Stallon one of the Attorneys of the Court against Thomas Bradye (which began in Easter Copyhold Fine reasona­ble. Term, An. 6 Jacobi Rot. 1845.) for breaking of his House and Close at Fenditton in the County of Cambridge; And the new Assignment was in an Acre of Pasture: The Defendant pleads that the place where, &c. was the Land and Freehold of Thomas Willowes and Richard Willowes; and that he as Servant, &c. And the Plaintiff for Replication saith, that the place where, was parcell of the Mannor of Fenditton, and demisable, &c. by Copy of Court-roll in Fee-simple: And that the Lords of the Mannor granted the Tenements in which, &c. to John Stallon and his heirs, who sur­rendred them unto the said Willowes, and VVillowes, Lords of the said Mannor, to the use of the Plaintiff and his heirs, who was admitted accordingly, &c. The Defendant doth rejoyn, and saith, That well and true it is, that the Tenements in which, &c. were parcell of the Mannor, and demisable, &c. And the surrender and admittance such, pro ut, &c. But the said Thomas Bradye further saith, that the Tene­ments in which, &c. at the time of the Admission of the said Richard Stallon, were, and yet are of the clear yearly value of fifty three shil­lings and four pence; And that within the said Mannor there is such a Custome, Quod rationabilis denariorum summa legalis monetae Angliae super quamlibet admissionem cujuslibet personae, sive quarumcunque per­sonarum tenent. vel tenent. per Dom. vel Dominos Manerii praedict. sive per Seneschallum, &c. ad aliquas terras sive Tenementa Customaria Ma­nerii praedict. secundum Consuetudinem Manerii illius debetur & a tem­pore quo, &c. debitum fuit Dom. &c. tempore ejusdem admissionis pro sine pro admissione illa, quod idem Dominus, vel idem Dom. praedict. vel Seneschallus suus Curiae ejusdem Manerii pro tempore existen. usus fu­it, vel usi fuerunt per totum Tempus supradict. in plena Curia Manerii illius pro Admissione ejusdem personae, seu earundum personarum sic fa­cta, assidere & appunctuare, Anglice, to Assesse, and appoint eandem rationabilem denariorum summam pro fine pro eadem Admissione sic & praefertur facta, nec non superinde eandem denariorum summam sic asses­sam & appunctuatam, praefatae personae sive personis sic admissae sive ad­missis, solveret & solverent, &c. eidem Domino, &c. praedictam rationa­bilem denariorum summam pro fine, pro Admissione sua praedict. sic as­sessam & appunctuat. And further saith, That the Steward of the said Mannor, at a Court holden 1. Octob. in the fourth year of the Reigne of the King that now is, admitted the Plaintiff to the Tenements, in which, &c. and assessed and set a reasonable summ of money, that is to say, five pounds, six shillings, eight pence, that is to say, Valorem corundem tenementorum per duos annos, & non ultra pro fine pro prae­dict. [Page 2] Admissione praedict. Richard. Stallon to the said Lords of the Man­nor to be paid: And also the said Steward at the same Court did give notice and signifie to the Plaintiff the said summ was to be paid to the said Lords of the Mannor, &c. And further saith, that the said VVil­lowes and VVillowes, afterwards, that is to say, the second day of No­vember, in the fourth year aforesaid, at Fenditton aforesaid, requested the said Richard Stallon to pay to them five pounds, six shillings, eight pence there, for the Fine for his admittance, &c. which the said Rich. Stallon, then and there utterly denied and refused, and as yet doth re­fuse. By which the said Richard Stallon forfeited to the aforesaid Thomas and Richard 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 [Page 3] 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 [...]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 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 [Page 4] 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 [Page 5] 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 Di [...] quod est duo & electio, id est, sepe­ratio, quia seperat duas Jurisdictiones: So Dioces signifies the Iuris­diction of one Ordinary seperated and divided from others; And be­cause the Archbishop of Canterbury hath a peculiar Iurisdiction in Lon­don, exempt out of the Dioces or Iurisdiction of the Ordinary or Bi­shop of London: For that cause it is fitly said, in the Title, Peramble, and body of the Act, That when the Archbishop sitting in his exempt Peculiar in London, cites one dwelling in Essex, he cites him out of the Dioces or Iurisdiction of the Bishop of London, ergo he is cited out of the Dioces: And in the clause of the penalty of ten pounds, It is said, out of the Dioces, or other Iurisdiction where the party dwel­leth, which agreeth with the signification of Dioces before. And as to the words, Far off, &c. they were put in the Preamble, to shew, the great mischief which was before the Act: As the Statute of 32 H. 8. cap. 33. in the Preamble, it is Disseisins with strength; and the body [Page 6] of the Act saith, such Disseisor, yet the same extendeth to all Disseisors, but Disseisin with force was the greatest mischief, as it is holden in 4. and 5 Eliz. Dyer 219. So the Preamble of the Statute of West. 2. cap. 5. is, Heirs in Ward, and the body of the Act is, Hujusmodi praesentat. as it is adjudged in 44 E. 3. 18. That an Infant who hath an Advowson by discent and is out of Ward, shall be within the remedy of the said Act, but the Frauds of the Guardians was the greater mis­chief. So the Preamble of the Act of 21 H. 8. cap. 15. which gives fal­sifying of Recoveries, recites in the Preamble, That divers Lessees have paid divers great Incomes, &c. Be it enacted, That all such Ter­mors, &c. and yet the same extends to all Termors: and yet all these Cases are stronger then the Case at Bar, for there that word (such) in the body of the Act referreth the same to the Preamble, which is not in our Case.

2. The body of the Act is, No manner of person shall be henceforth cited before any Ordinary, &c. out of the Dioces or peculiar Iurisdi­ction where the person shall be dwelling: And if he shall not be cited out of the Peculiar before any Ordinary a Fortiori, the Court of Ar­ches which sits in a Peculiar, shal not cite others out of another Dioces: And these words, Out of the Dioces, are to be meant out of the Dioces or Iurisdiction of the Ordinary, where he dwelleth; but the exempt Peculiar of the Archbishop is out of the Iurisdiction of the Bishop of London, as S. Martins, and other places in London, are not part of London, although they are within the circumference of it.

3. It is to be observed, That the Preamble reciting of the great mischief, recites expresly, That the Subjects were called by compul­sary proces to appear in the Arches, Audience, and other high Courts of the Archbishoprick of this Realm; So as the intention of the said Act was to reduce the Archbishop to his proper Dioces or peculiar Iu­risdiction, unlesse it were in five Cases.

1. For any Spirituall Offence or cause committed, or omitted con­trary to the right and duty by the Bishop, &c. which word (omitted) proves that there ought to be a default in the Ordinary.

2. Except it be in case of Appeal and other lawfull cause wherein the party shall find himselfe greived by the Ordinary after the matter or cause there first begun; ergo the same ought to be first begun before the Ordinary.

3. In case that the Bishop of the Dioces, or other immediate Iudge or Ordinary dare not, or will not convent the party to be sued before him, where the Ordinary is called the immediate Iudge, as in truth he is; and the Archbishop unlesse it be in his own Dioces (these spe­ciall Cases excepted) mediate Iudge, scil. by Appeal, &c.

4. Or in case that the Bishop of the Dioces, or the Iudge of the place within whose Iurisdiction, or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the mat­ter or cause of the same suit; Which clause in expresse words is a full exposition of the body of the Act, scil. That every suit (others then those which are expressed) ought to be begun and prosecuted, before the Bi­shop of the Dioces, or other Iudge of the same place.

5. In case that any Bishop or any inferiour Iudge having under him Iurisdiction, &c. make request or instance to the Archbishop, Bi­shop, or other inferiour Ordinary or Iudge, and that to be done in ca­ses only where the Law Civill or Common doth affirm, &c. By which it fully appeareth, That the Act intendeth, That every Ordinary and [Page 7] Ecclesiasticall Iudge should have the Conusance of Causes within their Iurisdiction, without any Concurrent Authority or Suit by way of prevention: And by this, the Subject hath great benefit as well by sa­ving of travell and charges to have Iustice in his place of habitation, as to be judged where he and the matter is best known; As also that he shall have many Appeals as his Adversary in the highest Court at the first. Also there are two Provisoes which explains it also, scil. That it shall be lawfull to every Archbishop to cite any person inhabiting in any Bishops Diocesse within his Province, for matter of Heresie, (which were a vain Proviso, If the Act did not extend to the Archbishop: But by that speciall Proviso for Heresie, it appeareth, that, for all cau­ses not excepted, is prohibited by the Act) Then the words of the Proviso go further, If the Bishop or other Ordinary immediatly hereunto con­sent, or if the same Bishop or other immediate Ordinary or Iudge do not his duty in punishment of the same; which words immediatly and immediate expound the intent of the makers of the Act.

2. There is a saving for the Archbishop the calling any person out of the Dioces where he shall be dwelling to the probate of any Testa­ments; which Proviso should be also in vain, if the Archbishop not­withstanding that Act should have concurrent Authority with every Ordinary through his whole Province: Wherefore it was concluded that the Archbishop out of his Dioces, unlesse in the Cases excepted, is prohibited by the Act of 23 H. 8. to cite any man out of any other Dioces. And in truth the Act of 23. of Henry the eighth, is but a Law declaratory of the ancient Canons, and of the true exposition of them: The Act of 23 H. 8. is a De­claration of the old Ca­non Law. And that appeareth by the Canon: Cap. Romana in sexto de Appella­tionibus, and Cap. de Competenti in sexto. And the said Act is so ex­pounded by all the Clergy of England, at a Convocation in London, An. 1 Jac. Regis 1603. Canon 94. Where it is decreed, ordained, and declared, That none should be cited to the Arches, or Audience, but the Inhabitants within the Archbishops Dioces, 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 [Page 8] 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 [Page 9] 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 [Page 10] 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 [Page 11] 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 averre [...] 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 [Page 12] 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 [Page 13] 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 the Rule of the Court is, Because it was an usage only in that Town, and not in the Towns, that is, in the Country adjoyning; he was put to answer: So as by the same it appeareth, that a Custome was not good in a particular Town, which perhaps might be good and of force in a Country, &c. See 40 Ass. 21. and 27, 39 E. 3. 2. A Custome with­in a Town, that an Infant, &c. might alien, is not good; But yet such a Custome within Kent hath often times been adjudged to be good. See 7 H. 6. 26. b. 16 E. 2. Prescription 53. Dyer 363. 22 H. 6. 14. 21 E. 4. 15. and 45 Ass. 8. See Doctor and Student lib. 2. cap. 55. A partciular Country may prescribe to pay no Tithes for Corn, Hay, and other things, but that is with this caution, so as the Minister hath suffici­ent portion besides to maintain him, to celebrate the Divine Service: And fol. 172. It is holden, That where Tithes have not been paid of under-woods under twenty years growth, that no Tithes shall be paid for the same, because that they do not renew nor increase from yeare to year, so as they are not due to the Parson but by Custome. And he saith fol. 174. That such a Custome of a whole Country, that no Tithes of a Lordship shall be paid, is good; and it is to be observed, that in all Libells for Tithes of Woods, they alledge a prescription to have Tithes of them: But the Court would advise, whether such a Custome for a Town or a Country should be good; But in ancient times, The Pa­rishioners have given or procured to the Parson a Wood or other Lands, &c. to have and to hold to him and his Successors in satisfa­faction of all Tithes of Wood in the same Parish, and the Parson is now seised of the same Wood, and that without question is a good dis­charge of his Tithes; and that in such case, if he sueth for Tithes of Wood a Prohibition lieth: And therefore it hath been said now of late. That such opinions were new and without any antiquity, unto the great prejudice of the Church: I will cite you an ancient Iudg­ment many years past, Mich. 25 H. 3. Wilts. Rot. 5. before the King at Westminster, Samson Foliet brought an Attaint upon a Prohibition, against Thomas Parson of Swynden, because he sued him in the Spi­rituall Court for a Lay Fee of the said Sampson, in Draycot, contrary to the Kings Prohibition; &c. The Defendant pleaded, Quod Co­ram Judicibus Delegatis petiit de eodem Decimas foeni de quodam prato ipsius Samsonis in Walcot unde est in possessione per sententiam Judicum suorum & fuit antequam Prohibitio Dom. Regis ad eum pervenerit, & quod Pratum praedict. est in Walcot unde ipse est Persona, & non in Dray­cot: To which the said Samson replyed and said, Quod Antecessores sui antiquitus dederunt Duas acras prati Ecclesiae de Draycot pro decimis foeni quam praedict. Thomas modo petit in eodem prato, quas quidem du­as acras prati eadem Ecclesia adhuc habet, & semper hucusque habuit, unde videtur ei quod illud quod praedict. Thomas ultra petit, est de laico feodo suo, & dicit quod pratum illud in quo idem Thomas petit Decimas est in Draycot sicut Breve dicit, & non in Walcot, & de hoc ponit se su­per Patriam: And the Iury found, Quod praedict. Thomas Persona de Swyndon secutus fuit placita in Curia Christianitatis de Laico feodo prae­dict. Samsonis contra Prohibitionem Dom. Regis, petendo ab ipso Deci­mas foeni de quodam prato ipsius Samsonis in Draycot unde Antecessores sui antiquitus dederunt Ecclesiae de Draycot duas acras prati pro Decima [Page 14] faeni quam praedict. Thomas modo petit, & quas eadem Ecclesia adhuc ha­bet & semper hucusque habuit, &c. Et quod Pratum praedict. in quo idem Thomas petiit Decimas est in Draycot, & non in Walcot, &c. Ideo Consi­deratum est quod praedict. Thomas sit inde in misericord. & reddat praedi. Samsoni 20. Marcas quas versus eum pro Damnis, &c. Which ancient Iudgment I have recited at large, because that the same agrees with the Rule and reason of the Law continued untill this day: For Iudg­ments or Presidents in the time of Ed. 2. E. 1. H. 3. John R. 1. and more ancient are not Authorities or Presidents to be now followed, unlesse that they concur and agree with the Law, and common experience and practice at this day; for many Acts of Parliaments (and some of them not extant) have changed the ancient Laws in divers Cases: and Desuetudo hath antiquated and time and Custome hath taken away di­vers others; So as the Rule is good, Quod Judiciis posterioribus sides est a [...]hibenda; Et a Communi observantia non est recedendum. There are two points adjudged by the said Record.

1. That satisfaction may be given in discharge of payment of Tithes; And if the Successor of the Parson enjoyeth the thing given in satisfaction of the Tithes, and sueth for Tithes in kind, he shall have a Prohibition, because that he chargeth his Lay Fee with Tithes, which is discharged of them. By which it appeareth that Tithes cannot be discharged, and altogether taken away and extinct: And herewith a­greeth the Register which is the most ancient Book of the Law, fol. 38. Rex, &c. tali Judici, &c. saltem. Monstravit nobis A. tenens quandam par­tem Manerii de D, quod licet E. nuper Dominus Manerii praedict. per quoddam scriptum Indentat. dedisset & concessisset F. nuper Personae Ec­clesiae de D. quatuor acras terrae cum pertin. in eodem Manerio Habend. & tenend. eidem F. & successoribus suis Personae Ecclesiae praedict. in per­petuum. Et eidem F. per praedictum scriptum de assensu & voluntate E­piscopi Lincoln. Diocesani loci praedict. & J. tunc Patroni Ecclesiae prae­dict. concessit pro se & successoribus suis quod idem E. haeredes & assig­nati sui essent quieti de Decimis vitulorum, &c. in Manerio praedict. pro praedict. quatuor acris sibi datis, &c. Et tamen nunc Persona Ecclesiae praedict. tenens praedict. quatuor acras terrae praedict. praedict. A. assig­nato praedict. E. super decimam hujusmodi vitulorum, &c. in eodem Ma­nerio, sibi praesentand. trahit in placitum coram, &c. in Curia Christiani­tatis, &c. Et quia discussio hujusmodi Donationis de laico feodo in regno nostro in Curia nostra, & non alibi tractari & fieri debet, vobis prohibe­mus, Quod placitum aliquod laicum feodum in Regno nostro non tene­atis in Curia Christianitatis, nec quicquam in hac parte quod in e­nervationem dicti scripti aut Donationis, & concessionis praedict. quae in 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, [Page 15] 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 [Page 16] 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 [Page 17] 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 [Page 18] 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 not of Tythes severed from the nine parts; for that shall be in Case of a Praemunire, and it appeareth to the Common Law: See 16 H. 2. in the Case of Mortuary. Vide Decretalia Sexti, Lib. 3. tit. de Decimis, cap. 1. fo. 130. Col. 4. Et summa Angelica, fo. 72. the same: And that also appeareth by Linwood amongst the Constitu­tions Simonis Mephum, tit. de Decimis cap. Quoniam propter, fo. 139. 6. verbo Consuetudines, Consuetudo ut non solvantur, aut minus plene solvantur Decimae non valet: and ibidem secundum alios, Quod in De­cimis realibus, non valet Consuetudo ut solvatur minus decima parte, sed in personalibus, &c. And ibidem Litt. M. verbo, Integre, faciunt ex­presse contra opinionem quorundum Theologorum, qui dicunt sufficere aliquid dari pro Decima. And that is the true Reason in both the said Cases, scil. de modo Decimandi, & de Limitibus Parochiorum, &c. that they would not adjudg according to their Canons; and therefore a Pro­hibition lieth: and therewith agreeth 8 E. 4. 14. and the other Boóks abovesaid, and infinite presidents; and the rather after the Statute of 2 E. 6. cap. 13. And also the Customs of the Realm are part of the Laws of the Realm; and therefore they shall be tryed by the Common Law, as is aforesaid: See 7 E. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Iustices.

VI. Mich. 6 Jacob. in the Exchequer.
Baron and Boys Case.

IN the Case between Baron and Boys, in an Information upon the Sur Stat. 2 E. 6. cap. 14. of Ingrossers. Statute of 5 E. 6. cap. 14. of Ingrossers, after Verdict it was found for the Informer, That the Defendant had ingrossed Apples against the said Act: The Barons of the Exchequer held clearly, That Apples were not within the said Act, and gave Iudgment against the Informer upon the matter apparent to them, and caused the same to be entered in the Margent of the Record where the Iudgment was given: and the In­former brought a Writ of Error in the Exchequer chamber, and the only Question was, Whether Apples were within the said Act? the letter of which is, That whatsoever person or persons, &c. shall ingross or get into his or their hands, by buying, contracting, or promise, taking (other then by Demise, Grant or Lease of Land, or Tythe) any Corn growing in the Fields, or any other Corn or grain, Butter, Cheese, Fish, or other dead Victual within the Realm of England, to the intent to sell the same again, shall be accepted, &c. an unlawful Ingrosser. And although that the Statute of 2 E. 6. cap. 15. made against Sellers of Victual, which for their great gain conspire, &c. numbereth Butchers, Brewers, Bakers, Cooks, Costermongers and Fruterers, as Victualers: yet Apples are not dead Victuals within the Statute of 5 E. 6. For the Buyers and Sellers of Corn and other Victuals have divers Pro­visoes and Qualifications for them, as it appeareth by the said Act, but [Page 19] Costermongers and Fruterers have not any Proviso for them: also, always after the said Act they have bought Apples and other Fruits by Ingross, and sold them again, and before this time no Information was exhibited for them, no more then for Plums or other fruit, which serveth more for delicacy then for necessary Food. But the Statute of 5 E. 6. is to be intended of things necessary and of common use for the sustenance of man: and therefore the words are, Corn, Grain, Butter, Cheese, or other dead Victual: which is as much to say, as Victual of like quality, that is, of like necessary and common use: But the Sta­tute of 2 E. 6. cap. 15. made against Conspiracies to enhaunce the prices, was done and made by express words, to extend it to things which are more of pleasure then of profit: So it was said, That of those Fruits a man cannot be a Forestaller within this Act of 5 E. 6. for in the same Branch the words are, any Merchandize, Victual, or any other thing. But this was not resolved by the Iustices, because that the Information was conceived upon that branch of the Statute con­cerning Ingrossers.

VII. Hill. 27 Eliz. in the Chancery.

HIllary Term, the 27 of Eliz. in the Chancery the Case was thus: One Ninian Menvil seised of certain Lands in Fee, took a wife, Fine. Dower. Relation. and levyed a Fine of the said Lands with proclamations, and after­wards was indicted and out-lawed of High Treason, and dyed: The Conusees convey the Lands to the Queen, who is now seised, the five years pass after the death of the Husband: The Daughters and Heirs of the said Ninian, in a Writ of Error in the Kings Bench, reverse the said Attainder, M. 26 and 27 Eliz. last past: and thereupon the Wife sueth to the Queen (who was seised of the said Land as aforesaid) by Petition containing all the special matter, scil. the Fine with pro­clamations, and the five years passed, after the death of her Husband, the Attainder and the reversal of it: and her own title, scil. her mar­riage, and the seisin of her Husband before the Fine: And the Petiti­on being endorsed by the Queen, Fiat droit aux parties, &c. the same was sent into the Chancery, as the manner is.

And in this case divers Objections were made against the Deman­dant.

1. That the said Fine with proclamations should bar the Wife of her Dower, and the Attainder of her Husband should not help her; for as long as the Attainder doth remain in force, the same was a bar also of her Dower, so as there was a double bar to the Wife, viz. the Fine levyed with proclamations, and the five years past after the death of her Husband, and the Attainder of her Husband of his Trea­son. But admit that the Attainder of the Husband shall avail the Wife in some manner, when the same is now reversed in a Writ of Error, and now upon the matter is in Iudgment of Law, as if no Attainder had been: and against that a man might plead, That there is no such Record, because that the first Record is reversed, and utterly disaffirm­ed and annihilated, and now by Relation made no Record ab initio: and therewith agreeth the Book of 4 H. 7. 11. for the words of the Iudgment in a Writ of Error are, Quod Judicium praedict. & Errores praedict. & alios in Recordo, &c. revocetur & admittetur, &c. & quod ipsa ad possessionem suam sive seisinam suam (as the case requireth) tene­mentorum [Page 20] suorum praedictorum, una cum exitibus & proficuis inde a tempore Judicii praedict. reddit, praecept. & ad omnia quae occasione Judicii illius omisit restituatur. By which it appeareth, that the first Iudgment, which was originally imperfect and erroneous, is for the same Errors now adnulled and revoked ab initio, and the party against whom the Iudgment was given restored to his possession, and to all the mean profits, from the time of the erroneous Iudgment given, until the Iudgment in the Writ of Error, so as the Reversal hath a Retro­spect to the first Iudgment, as if no Iudgment had been given: And therefore the Case in 4 H. 7. 10. b. the case is, A. seised of Land in Fee, was attainted of High Treason, and the King granted the Land to B. and afterwards A. committed Trespass upon the Land, and af­terwards by Parliament A. was restored, and the Attainder made voyd, as if no Act had been; and shall be as available and ample to A. as if no Attainder had been: and afterwards B. bringeth Trespass for the Trespass Mesue; and it was adjudged in 10 H. 7. fo. 22. b. That the Action of Trespass was not maintainable, because that the Attain­der was disaffirmed and annulled ab initio. And in 4 H. 7. 10. it is holden, That after a Iudgment reversed in a Writ of Error, he who recovered the Land by Erroneous Iudgment shall not have an Action of Trespass for a Trespass Mean, which was said, was all one with the principal case in 4 H. 7. 10. and divers other Cases were put upon the same ground.

It was secondly objected, That the Wife could not have a Petition, because there was not any Office by which her title of Dower was found, scil. her marriage, the seisin of her Husband, and death: for it was said, that although she was marryed, yet if her Husband was not seised after the age that she is Dowable, she shall not have Dower: as if a man seised of Land in Fee, taketh to Wife a woman of eight years, and afterwards before her age of nine years, the Husband ali­eneth the Lands in Fee, and afterwards the woman attaineth to the age of nine years, and the Husband dyeth; it was said, that the wo­man shall not be endowed. And that the title of him who sueth by Pe­tition ought to be found by Office, appeareth by the Books in 11 H. 4. 52. 29 Ass. 31. 30 Ass. 28. 46 E. 3. bre. 618. 9 H. 7. 24. &c.

As to the first Objection, it was resolved, That the Wife should be endowed, and that the Fine with proclamations was not a bar unto her, and yet it was resolved that the Act of 4 H. 7. cap. 24. shall bar a woman of her Dower by a Fine levyed by her Husband with procla­mations, if the woman doth not bring her Writ of Dower within five years after the death of her Husband, as it was adjudged Hill. 4 H. 8. Rot. 344. in the Common Pleas, and 5 Eliz. Dyer 224. For by the Act, the right and title of a Feme Covert is saved, so that she take her action within 5. years after she become uncovert, &c. but it was resolved, That the wife was not to be ayded by that saving: for in respect of the said Attainder of her Husband of Treason, she had not any right of Dower at the time of the death of her Husband, nor can she after the death of her Husband bring an Action, or prosecute an Action to recover her Dower, according to the direction and saving of the said Act: But it was resolved, That the Wife was to be ayded by another former Saving in the same Act, viz. And saving to all other persons (scil. who were not parties to the Fine) such action, right, title, claym, and in­terest in or to the said Lands, &c. as shall first grow, remain, descend, or come to them after the said Fine ingrossed and proclamations made, [Page 21] by force of any Gift in Tail, or by any other cause or matter had and made before the said Fine levied, so that they take their Actions and pursue their right and Title according to the Law, within five years next after such Action, Right, Claim, Title, or Interest to them ac­crued, descended, fallen, or come, &c. And in this case the Action and right of Dower accrued to the wife after the reversall of the At­tainder, by reason of a Title of Record before the Fine by reason of the seisin in Fee (had) and the Marriage (made) before the Fine le­vied, according to the [...]ention and meaning of the said Act.

And as to the said po [...]t of Relation, It was resolved, That some­times by construction of Law a thing shall relate ab initio to some in­tent, and to some intent not; For Relatio est fictio Juris, to do a thing which was and had essence, to be adnulled ab initio, betwixt the same parties to advance a Right, or Ut res magis valeat quam pereat: But the Law will never make such a construction to advance a wrong, which the Law abhorreth, Or to defeat Collaterall Acts which are lawfull and principally if they do concern Strangers: And this appeareth in this Case (scil.) when an erroneous Iudgment is reversed by a Writ of Error: For true it is as it hath been said, That as unto the mean Profits, the same shall have relation by construction of Law, untill the time of the first Iudgment given, and that is to favour Iustice and to advance the right of him who hath wrong by the erroneous Iudgment. But if any stranger hath done a Trespasse upon the Land in the mean time, he who recovereth after the Reversall shall have an Action of Trespasse against the Trespassors, and if the Defendant pleadeth that there is no such Record, the Plaintiff shall shew the speciall matter, and shall maintain his Action, so as unto the Trespassors who are wrong Doers, the Law shall not make any construction by way of relation ab initio to excuse them, for then the Law by a fiction and con­struction should do wrong to him who recovereth by the first Iudgment: And for the better apprehending of the Law on this point, it is to know, That when any man recovers any possession or seisin of Land, in any Action by erroneous Iudgment, and afterwards the Iudgment is reversed as is said before, and upon that the Plaintiff in the Writ of Error shall have a Writ of Restitution, and that Writ recites the first recovery, and the reversall of it in the Writ of Error, is, that the Plaintiff in the Writ of Error shall be restored to his possession and seisin, Una cum exitibus thereof from the time of the Iudgment, &c. Tibi praecipimus quod eadem A. ad plenariam seisinam tenementorum praedict. cum pertinentiis sine dilatione restitui facias, & per sacramen­tum proborum & legalium hominum de Com. suo diligenter inquires ad quantum exitus & proficua tenementorum illorum cum pertinentiis a tempore falsi Judicii praedict. reddit. usque ad Oct. Sanct. Mich. anno, &c. quo die judcium illud per praefat. Justiciar, nostros revocat. fuit, se attingunt, juxta verum valorem eorundem, eadem exitus, & proficua de terris & catallis praedict. B. in baliva tua fieri facias, & denarios inde praefato A. pro exitibus et proficuis tenementorum per eundem B. dicto medio tempore percept. sine dilatione haberi sacias: Et qualiter hoc prae­ceptum nostrum fuerit execut constare facias, &c. in Octab. &c. By which it appeareth, That the Plaintiff in the Writ of Error shall have resti­tution against him who recovereth of all the mean Profits, without a­ny regard by them taken, for the Plaintiff in the Writ of Error can­not have any remedy against any stranger, but only against him who is party to the Writ of Error, and therefore the words of the said Writ [Page 22] command the Sheriff to enquire of the Issues and Profits generally, between the Reversal and the Iudgment, with all which he who reco­vers shall be charged: and as the Law chargeth him with all the mean profits, so the Law gives to him remedy notwithstanding the Reversal against all Trespassors in the interim, for otherwise the Law should make a construction by relation to discharge them who are wrong doers, and to charge him who recovers with the whole, who peradven­ture hath good right, and who entereth by the Iudgment of the Law, which peradventure is reversed for want of form, or negligence or ig­norance of a Clark. And therefore as to that purpose the Iudgment shall not be reversed ab initio by a Fiction of Law, but as the truth was, the same stands in force until it was reversed: and therefore the Plaintiff in the Writ of Error after the Reversal shall have any Action of Trespass for a Trespass mean, because he shall recover all the mean profits against him who recovered, nor he recover­eth after shall be barred of his Action of Trespass for a Trespass mean, by reason that his recovery is reversed, because he shall answer for all the mean profits to the Plaintiff in the Writ of Error: and therewith agreeth Brian Chief Iustice, 4 H. 7. 12. a.

Note Reader, If you would understand the true sence and Iudg­ment of the Law, it is needful for you to know the true Entries of Iudgments, and the Entries of all proceedings in Law, and the man­ner and the matter of Writs of Execution of such Iudgments. See Butler and Bakers Case, in the third part of my Reports, good matter concerning Relations. So as it was resolved in the Case at Bar, Al­though that to some intent the Reversal hath relation, yet to bar the Wife of her Dower by Fiction of Law, by the Fine with proclamati­ons, and five years past after the death of her Husband, when in truth she had not cause of Action, nor any right or title so long as the Attain­der stood in force, should be to do wrong by a Fiction of Law, and to bar the Wife, who was a meer stranger, and who had not any means, to have any Relief until the Attainder was reversed.

And as unto the other point or Objection, that the Demandant on the Petition ought to have an Office found for her, it was resolved, that it needed not in this case, because that the title of Dower stood with the Queens title, and affirmed it, otherwise if the title of the Demandant in the Petition had disaffirmed the Queens title: also in this Case, the Queen was not entituled by any Office that the Wife should be driven to traverse it, &c. for then she ought to have had an Office to finde her title: But in Case of Dower, although that Office had been found for the Queen which doth not disaffirm the title of Dower, in such case the Wife shall have her Petition without Of­fice, because that Dower is favored in Law, she claiming but onely for term of life, and affirming the title of the Queen. See the Sadlers Case in the fourth part of my Reports.

And the case which was put on the other side was utterly denyed by the Court, for it was resolved, That if a man seised of Lands in Fee, taketh a Wife of eight years of age, and alieneth his Lands, and afterwards the Wife attaineth to the age of nine years, and afterwards the Husband dyeth, that the Wife shall be endowed: For although at the time of the alienation the Wife was not dowable, yet for as much as the marriage, and seisin in Fee, was before the alienation, and the title of Dower is not consummate until the death of her Husband, so as now there was marriage, seisin of Fee, age of nine years during [Page 23] the Coverture, and the death of the Husband, for that cause she shall be endowed: For it is not requisite that the marriage, seisin and age concur together all at one time, but it is sufficient if they happen du­ring the Coverture: So if a man seised of Lands in Fee take a Wife, and afterwards she elopes from her Husband, now she is barrable of her Dower, if during the Elopement the Husband alieneth, and after the Wife is reconciled, the Wife shall be endowed: So if a man hath issue by his Wife, and the issue dyeth, and afterwards Land descend­eth to the Wife, or the Wife purchaseth Lands in Fee, and dyeth with­out any other issue, the Husband (for the issue which he had before the Discent or purchase) shall be Tenant by the curtesie, for it is sufficient if he have issue, and that the Wife be seised during the Coverture, al­though that it be at several times. But if a man taketh an Alien to Wife, and afterwards he alieneth his Lands, and afterwards she is made a Denizen, she shall not be endowed, for she was absolutely dis­abled by the Law, and by her birth not capable of Dower, but her ca­pacity and ability began onely by her Denization, but in the other case there was not any incapacity or disability in the person, but onely a temporary Bar, until such age or reconcilement, which being accom­plished the temporary Bar ceaseth: As if a man seised of Lands in Fee, taketh a Wife, and afterwards the Wife is attainted of Felony, and afterwards the Husband alieneth, and afterwards the Wife is par­doned, and afterwards the Husband dyeth, the Wife shall be endow­ed, for by her birth she was not uncapable, but was lawfully by her marriage and seisin in Fee entituled to have Dower; and therefore when the impediment is removed, she shall be endowed.

VIII. Trinit. 44 Eliz. In the Kings-Bench.
Sprat and Heals Case.

JOhn Sprat Libelled in the Spiritual Court against Walter Heal for Tythes. Covin. substraction of Tythes, the Defendant in the Spiritual Court pleaded, that he had divided the Tythes from the nine parts: and then the Plaintiff made addition to the Libel (in the nature of a Replicati­on) scil. That the Defendant divided the Tythes from the nine parts, quod praedict. the Plaintiff non fatetur, sed prorsus diffitetur; yet pre­sently after this pretended division in fraudem legis, he took and car­ryed away the same Tythes, and converted them to his own use; and the Plaintiff thereupon obtained sentence in the Spiritual Court, and to recover the treble value according to the Statute of 2 E. 6. cap. 13. And thereupon Heal made a 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 [Page 24] 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 [Page 25] 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 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.

[Page 26] 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 [Page 27] 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: [Page 28] 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 quandàm 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. [Page 29] 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, 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. [Page 30] 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 [Page 31] 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 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. [Page 32] 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 [Page 33] 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 in the Information was deni­ed in the Kings Bench, was utterly denied: for the same was moved when two Iudges were in Court, who gave not any opinion therein, but required Serjeant Hutton who moved it, to move the same again when the Court was full, &c.

XII. Pasch. 7 Jacobi Regis.

NOte, that this Term a Question was moved at Serjeants-Inne: Who by the Common Law ought to repair the Bridges, common Rivers, and Sewers, and the High-waies, and by what means they shall be compelled to it; and first of the Bridges: And as to them it is to be known, That of common Right all the Country shall be charged to the Reparation of a Bridge, and therewith agreeth 10 E. 3. 28. b. That a Bridge shall be levied by the whole Country, because it is a common Easement for the whole Country, and as to that Point, the Statute of 22 H. 8. cap. 5. was but an affirmance of the Common Law: And this is true, when no other is bound by the Law to repair it, but he who hath the Toll of the men or Cattell which passe over a Bridge or Cawsey, ought to repaire the same, for he hath the Toll to that pur­pose, Et qui sentit commodum sentire debet & onus: and therewith a­grees 14 E. 3. Bar 276. Also a man may be bounden to repaire a Bridge, ratione Tenurae of certain Land, But a particular person can­not be bound by prescription, scil. That he and all his Ancestors have repaired the Bridge, if it be not in respect of the Tenure of his Land, taking of Toll, or other profit; for the Act of the Ancestor, cannot charge the Heir without profit. But an Abbot or other Corporation who hath a lawfull being may be charged, scil. That he and his Pre­decessors time out of mind, &c. have repaired the Bridge; For the Ab­bot and Covent may bind their Successors, vide 21 E. 4. 28. 27 E. 3. 8. 22 Ass. 8. 5 H. 7. 3. And if an Abbot and his Predecessors time out of mind have repaired a Bridge of Almes, they shall be compelled to re­paire it; and therewith agreeth 10 E. 3. 28. So it is of a High-way of common Right, all the Country ought for to repaire it, because that the Country have their ease and passage by it, which stands with the reason of the Case of the Bridge, but yet some may be particularly boun­den to repaire it as is aforesaid. He who hath the Land adjoyning, ought of common Right without prescription to scoure and cleanse the Ditches, next to the way to his Land: and therewith agreeth the Book of 8 H. 7. 5. But he who hath Land adjoyning without prescription, is not bound to repair the way. So of a common River, of common Right all who have ease and passage by it, ought to cleanse and scoure it; For a common River is as a common Street, as it is said in 22 Ass. and 37 Ass. 10. But he who hath Land adjoyning to the River is not bounden to cleanse the River, unlesse he hath the benefit of it, scil. a Toll, or a Fishing, or other profit. See 37 Ass. p. 10.

XIII. Pasch. 7 Jacobi.
Sir William Reades and Boothes Case.

IN the great Case in the Star-Chamber, of a Forgery, Between Sir William Read Plaintiff, and Roger Booth, and Cutbert Booth, and others Defendants: the Case was this;

The said Roger Booth 38 Eliz. was convicted in that Court of the publication of a Writing under Seal, forged in the name of Sir Tho­mas Gresham, of a Rent-charge of a hundred pounds, cut of all his Lands and Tenements, to one Markham for ninety nine years, bearing date the one and twentieth year of Queen Elizabeth; the said Roger know­ing it to be forged, And afterwards the said Sir William Read exhibi­ted the said Bill against the said Boothes, and others, for forging of another writing under Seal bearing date the twentieth of Eliz. in the name of the said Sir Thomas Gresham, purporting a Deed of Feoff­ment of all his Lands (except certain) to Sir Rowland Heyward and Edward Hoogon and their Heirs, to certain uses, which was in effect to the use of Markham the younger and his Heirs: And for the publica­tion of the said Writing, knowing the same to be forged, was the Bill exhibited. And now upon the hearing of the Cause in the Star-Cham­ber this Term: These doubts were moved upon the Statute of 5 E­liz. 1. If one who is convicted of publication of a Deed of Feoffment of Rent-charge, knowing the same to be forged: Again at another day forge another Deed of Feoffment, or Rent-charge, if he be within the case of Felony within the said Act, which doubt ariseth upon these words (eftsoons) committed again any of the said Offences) And therefore it was objected, that he ought to commit again the same na­tute of Offence, scil. If he were convicted of Forgery he ought to forge again, and not only publish, knowing, &c. And if first he were convi­cted of publishing, knowing, &c. he ought to offend again in publication, knowing, &c. and not in Forgery, for (eftsoons) which is (iterum) im­plyeth that it ought to be of the same nature of Offence. The second doubt was, If a man committeth two Forgeries, the one in 37 of Eliz. and the other in 38. and he is first convicted of the last, if he may be now impeached for the first. The third doubt was, when Roger Booth was convicted in 38 Eliz. and afterwards is charged with a new Forgery in 37 Eliz. If the Witnesses proving in truth that it was forged after the first conviction, if the Star Chamber hath Iurisdiction of it. The last doubt was, when Cutbert Booth who never was convicted of For­gery before, if in truth the Forgery was done, and so proved in 38 E­liz. If he might be convicted upon this Bill, because that the Forgery is alledged before that it was done. As to the first and second doubts, it was resolved by the two chief Iustices and the chief Baron, that if any one be convicted of Forgery or publication of any Writing concer­ning Freehold, &c. within the first Branch; or concerning Interest or Term for years, &c. within the second Branch, and be convicted, if af­terwards he offend either against the first Branch or second, that the same is Felony: As if he forgeth a Writing concerning interest for years within the second branch, and be convicted, and afterwards he forgeth a Charter of Feoffment within the first branch, or è converso, [Page 35] that that is Felony, and that by expresse words of the Act: That if a­ny person or persons being hereafter convicted or condemned of any of the said Offences, which words (any of the said Offences, extend to all the Offences mentioned before, either in the first branch, or in the second branch) by any the waies or means above limited, shall after a­ny such conviction or condemnation, eftsoons commit or perpetrate any of the said Offences, in form aforesaid, which words, Any of the said Offences, &c. 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: [Page 36] 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 Dec [...] 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 [Page 38] 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 [Page 39] 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 [Page 40] 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 [Page 41] prescription, although it was betwixt spiritual persons, should be tryed by the Common Law: Vide 22 H. 6. 46. and 47. A prescription, that an Abby time out of minde had found a Chaplain in his Chappel to say Divine Service, and to minister Sacraments, tryed at the Common Law.

3. See the Record of 25 H. 3. cited in the case of Modus Decimandi before: and see Register fo. 38. when Lands are given in satisfaction and discharge of Tythes.

4. See the Statute of Circumspecte agatis, Decimae debitae, seu con­suetae, which proves that Tythes in kinde, and a Modus by custom, &c.

5. 8 E. 4. 14. and Fitz. N. B. 41. g. A Prohibition lieth for Lands given in discharge of Tythes. 28 E. 3. 97. a. There Suit was for Tythes, and a Prohibition lieth, and so abridged by the Book, which of necessity ought to be upon matter De Modo Decimandi, or dis­charge.

7. 7 E. 6. 79. If Tythes are sold for mony, by the sale the things spiritual are made temporal, and so in the case De modo Decimandi, 42 E. 3. 12. agrees.

8. 22 E. 3. 2. Because an Appropriation is mixt with the Tempo­ralty, (scil.) the Kings Letters Patents, the same ought to be shewed how, &c. otherwise of that which is meer Temporal: and so it is of real composition, in which the Patron ought to joyn: Vide 11 H. 4. 85. Composition by writing, that the one shall have the Tythes, and the other shall have mony, the Suit shall be at the Common Law.

Secondly, By Acts of Parliament.

1. The said Act of Circumspecte agatis, which giveth power to the Ecclesiastical Iudg to sue for Tythes due first in kinde, or by custom, i. e. Modus Decimandi: so as by authority of that Act, although that the yearly sum soundeth in the Temporalty, which was payd by Cu­stom in discharge of Tythes, yet because the same cometh in the place of Tythes, and by constitution, the Tythes are changed into mony, and the Parson hath not any remedy for the same, which is the Modus Decimandi at the Common Law; for that cause the Act is clear, that the same was a doubt at the Common Law: And the Statute of Arti­culi Cleri, cap. 1. If corporal pennance be changed in poenam pecuni­ariam, for that pain Suit lieth in the Spiritual Court: For see Mich. 8 H. 3. Rot. 6. in Thesaur. A Prohibition lieth pro eo quod Rector de Chesterton exigit de Hagone de Logis de certa portione pro Decimis Molendinarium; so as it appeareth, it was a doubt before the said Sta­tute, if Suit lay in the Spiritual Court de Modo Decimandi. And by the Statute of 27 H. 8. cap. 20. it is provided and enacted, That every of the subjects of this Realm, according to the Ecclesiastical Laws of the Church, and after the laudable usages and customs of the Pa­rish, &c. shall yield and pay his Tythes, Offerings, and other duties: and that for substraction of any of the said Tythes, offerings, or other duties▪ the Parson, &c. may by due Proces of the Kings Ecclesiastical Laws, convent the person offending before a competent Iudg, having authori­ty to hear and determine the Right of Tythes, and also to compel him to yeild the Duties; i. e. as well Modus Decimandi, by laudable usage or Custom of the Parish, as Tythes in kinde: and with that in effect agrees the Statute of 32 H. 8. cap. 7. By the Statute of 2 E. 3. cap. 13. it is enacted, That every of the Kings Subjects shall from henceforth, truly and justly, without fraud or guile, divide, &c. and pay all manner of their predial Tythes in their proper kinde, as they rise [Page 42] and happen in such manner and form as they have been of Right yield­ed and payd within forty years next before the making of this Act, or of Right or Custom ought to have been payd. And after in the same Act there is this clause and Proviso, Provided always, and be it en­acted, That no person shall be sued, or otherwise compelled to yield, give, or pay any manner of Tythes for any Mannors, Lands, Tene­ments, or Hereditaments, which by the Laws and Statutes of this Realm, or by any priviledg or prescription, are not chargeable with the payment of any such Tythes, or that be discharged by any compo­sitions real. And afterwards, there is another Branch in the said Act; And be it further enacted, That if any person do substract or withdraw any manner of Tythes, Obventions, Profits, Commodities, or other Duties before mentioned (which extends to Custom of Ty­thing, i. e. Modus Decimandi, mentioned before in the Act, &c.) that then the party so substracting, &c. may be convented and sued in the Kings Ecclesiastical Court, &c. And upon the said Branch, which is in the Negative, That no person shall be sued for any Tythes of any Lands which are not chargeable with the payment of such Tythes by any Law, Statute, Priviledg, Prescription, or Real Composition. And always when an Act of Parliament commands or prohibits any Court, be it Temporal or, Spiritual, to do any thing temporal or spiritual, if the Statute be not obeyed, a Prohibition lieth: as upon the Statute de articu­lis super Cartas, ca. 4. Quod Communia Placita non tenentur in Scaccario: a Prohibition lieth to the Court of Exchequer, if the Barons hold a Com­mon-Plea there, as appeareth in the Register 187. b. So upon the Sta­tute of West. 2. Quod inquisitiones quae magnae sunt examinationis non capiantur in patria; a Prohibition lieth to the Iustices of Nisi Prius. So upon the Statute of Articuli super Cartas, cap. 7. Quod Constabularius Castr. Dover, non teneat Placitum forinsecum quod non tangit Custo­diam Castri, Register 185. So upon the same Statute, cap. 3. Quod See Lib. Entr. 450. a Prohi­bition was up­on the Statute that one shall not maintain; and so upon every penal Law. See F. N. B 39. b. Prohibition to the Com­mon Pleas up­on the Stat. of Magna Charta that they do not proceed in a Writ of Prae­cipe in Capite, where the Land is not holden of the King. 1 & 2 Eliz. Dy. 170, 171. Pro­hibition upon the Statute of barrenes, and pettit is onely prohibited by implication. Senescallus & Mariscallus non teneant Placita de libero tenemento, de debito, conventione, &c. a Prohibition lieth, 185. And yet by none of these Statutes, no Prohibition or Supersedeas is given by express words of the Statute. So upon the Statutes 13 R. 2. cap. 3. 15 R. 2. cap. 2. 2 H. 4. cap. 11. by which it is provided, That Admirals do not meddle with any thing done within the Realm, but onely with things done upon the Seas, &c. a Prohibition lieth to the Court of Ad­miralty. So upon the Statute of West. 2. cap. 43. against Hospi­talers and Templers, if they do against the same Statute, Regist. 39. a. So upon the Statute de Prohibitione regia, Ne laici ad citationem E­piscopi conveniant ad recognitionem faciend. vel Sacrament. praestanda nisi in casubus matrimonialibus & Testamentariis, a Prohibition lieth. Regist. 36. b. And so upon the Statute of 2 H. 5. cap. 3. at what time the Libel is grantable by the Law, that it be granted and delivered to the party without difficulty, if the Ecclesiastical Iudg, when the cause which depends before him is meer Ecclesiastical, denyeth the Libel, a Prohibition lieth, because that he doth against the Statute; and yet no Prohibition by any express words is given by the Statute. And upon the same Statute the Case was in 4 E. 4. 37. Pierce Peckam took Let­ters of Administration of the Goods of Rose Brown of the Bishop of London, and afterwards T. T. sued to Thomas Archbishop of Canter­bury, That because the said Rose Brown had Goods within his Diocess, he prayed Letters of Administration to be committed to him, upon which the Bishop granted him Letters of Administration, and after­wards [Page 43] 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 [Page 44] 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 [Page 45] 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 materia (que) 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 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 [Page 47] Decimandi is lesse in value then the Tithes in specie, and then the same is against their Canon; Quod decimae solvantur absque diminutione, & quod consuetudo de non plene Decimando non valet. And it seemed to the King, that that Book was a good Cause for them in the time of King Edward the fourth to say, as they had said; but I said, That I did not relie upon that, but upon the grounds aforesaid, (scil.) The common Law, Statute-Laws, and the continuall and infinite judgements and judiciall proceedings, and that if any Canon or Constitution be against the same, such Canon and Constitution, &c. is void by the Statute of 25. H. 8. Cap. 19. which see and note: For all Canons, Constitutions, &c. against the Prerogative of the King, the common Laws, Statutes, or Customs of the Realm are void.

Lastly, the King said; That the high Commission ought not to meddle with any thing but that which is enormious and exorbitant, and cannot permit the ordinary Proces of the Ecclesiasticall Law; and which the same Law cannot punish. And that was the cause of the in­stitution of the same Commission, and therefore, although every offence, ex vi termini, is enormious, yet in the Statute it is to be intended of such an offence, is extra omnem normam, as Heresie, Schisme, Incest, and the like great offences: For the King said, That it was not reason that the high Commission should have conusance of common offences, but to leave them to Ordinaries, scil. because, that the party cannot have any appeal in case the high Commisson shall determine of it. And the King thought that two high Commissions, for either Province one, should be sufficient for all England, and no more.

XV. Mich. 39 and 40 Eliz. in the Kings Bench.
Bedell and Shermans Case.

MIch. 39 and 40 Eliz. which is entred Mich. 40 Eliz. in the com-Pleas, Rot. 699 Cantabr. the Case was this: Robert Bedel, Gent. and Sarah his wife, Farmors of the Rectory of Litlington in the County of Cambridge, brought an Action of Debt against John Sherman, in the custody of the Marshall of the Marshalsey, and demanded 550 l. And declared, that the Master and Fellows of Clare-Hall in Cambridge, were seised of the said Rectory in fee, in right of the said Colledge, and in June 10. 29 Eliz. by Indenture demised to Christopher Phesant the said Rectorie, for 21 years, rendering 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute, &c. which Rent was the ancient Rent, who entred into the said Rectory, and was possessed, and assigned all his interest thereof to one Matthew Bat [...], 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 [Page 48] 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 fee­simple, covenants for the advancement of his son, and of his name, and blood, and posterity, that he will stand seised 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 [Page 49] 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 [Page 50] 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 Court. See 21 Eliz. Dyer 362. If Tenant in Socage dyeth seised [Page 51] 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 [Page 52] 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 [Page 54] 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 his Deed indented, dated the 22 of December in the [Page 55] 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 [Page 56] 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 the Feoffee and another, is not any new thing, but the pernancy of the old profits of the Land, which well may be limited to the Feoffee and another joyntly: But if the use had been onely limited to the Feoffee and his Heirs, there, be­cause there is not any limitation to another person, nec in praesenti, nec in futuro, he shall be in by force of the Feoffment.

And it was resolved, That Ioynt-tenants might be seised to an use, although that they come to it at several times: as, if a man maketh a Feoffment in Fee to the use of himself, and to such a woman, which he shall after marry, for term of their lives, or in tayl, or in fee; in this case, if after he marryeth a Wife, she shall take joyntly with him, although that they take the use at several times, for they derive the use out of the same fountain and Freehold, scil. the Feoffment: See 17 Eliz. Dyer 340. So if a Disseisin be had to the use of two, and one of them agreeth at one time, and the other at another time, they shall [Page 57] be Ioynt-tenants; but otherwise it is of Estates which pass by the common Law: and therefore if a Grant be made by deed to one man for term of life, the Remainder to the right Heirs of A. and B. in Fee, and A. hath issue and dyeth, and afterwards B. hath issue and dyeth, and then the Tenant for life dyeth; in that case the Heirs of A. and B. are not Ioynt-tenants, nor shall joyn in a Scire facias to exe­cute the Fine, 24 E. 3. Joynder in Action 10. because that although the remainder be limited by one Fine, and by joynt words, yet be­cause that by the death of A. the Remainder as unto the moyety vested in his Heir, and by the death of B. the other moyety vested in his Heir at several times, they cannot be Ioynt▪tenants: But in the case of a use, the Husband taketh all the use in the mean time; and when he marryeth, the Wife takes it by force of the Feoffment and the limita­tion of the use joyntly with him, for there is not any fraction and seve­ral vesting by parcels, as in the other case, and such is the difference. See 18 E. 3. 28. And upon the whole matter it was resolved, That because in the principal case the Father and Son were Ioynt-tenants by the original purchase, that the Son having the Land by Survivor, should not be in Ward: and accordingly it was so decreed.

XXIV. Pasc. 39 Eliz. Rot. 233. In the Kings-Bench.
Collins and Hardings Case.

THe Case between Collins and Harding was, A man seised of Lands in Fee, and also of Lands by Copy of Court Roll in Fee, ac­cording to the Custom of the Mannor, made one entire Demise of the Lands in Fee, and of the Lands holden by Copy according to the Custom, to Harding for years, rendering one entire Rent: and af­terwards the Lessor surrendered the Copyhold Land to the use of Collins and his Heirs: and at another time granted by Deed the Reversion of the Freehold Lands to Collins in Fee, and Harding attorned; and afterwards for the Rent behinde, Collins brought an Action of Debt for the whole Rent: And it was objected, That the reservation of the Rent was an entire contract, and by the Act of the Lessee the same cannot be apportioned: and therefore if one demiseth three Acres, ren­dering 3 s. Rent, and afterwards bargaineth and selleth, by Deed in­dented and inrolled, the Reversion of one Acre, the whole Rent is gone, because that the Contract is entire and cannot be severed by the Act of the Lessor: Also the Lessee by that shall be subject to two Fealties, where he was subject but to one before.

As to these points, it was answered and resolved, That the Contract was not entire, but that the same by the Act of the Lessor, and the as­sent of the Lessee, might be divided and severed: for the Rent is inci­dent to the Reversion, and the Reversion is severable, and by conse­quence the Rent also: for accessorium sequitur naturam sui principalis, and that cannot be severed or divided by the assent of the Lessee, or ex­press attornment, or implyed by force of an Act of Parliament, to which every one is a party, as by force of the Statute of Inrolments, or of Vses, &c. And as to the two Fealties, to that the Lessee shall be subject, although that the Rent shall be extinct: for Fealty is by ne­cessity of Law incident to the Reversion, and to every part of it; but the Rent shall be divided pro rata portionis: and so it was adjudged.

And it was also adjudged, That although Collins cometh to the Re­version by several Conveyances, and at several times, yet he might bring an Action of Debt for the whole Rent. Hill. 43 Eliz. Rot. 243. West and Lassels Case: A man made a Lease for years of certain Lands, and afterwards deviseth the Reversion of two parts to one, he shall have two parts of the Rent; and he may have an Action of Debt for the same, and have Iudgment to recover. Hill. 42 Eliz. Rot. 108. in the Common-Pleas, Ewer and Moyls Case: The Devisee of the Re­version of part shall avow for part of the Rent, and such Avowry shall be good and maintainable.

Note well these Cases and Iudgments, for they are given upon great reason and consideration, for otherwise great inconvenience would en­sue, if by severance of part of the Reversion, the entire Rent should be lost: and the opinion reported by Serjeant Bendloes, in Hill. 6 and 7 E. 6. to the contrary, nihil valet, (scil.) That the Rent in such case shall be lost, because that no contract can be apportioned, which is not Law: For, 1. A Rent reserved upon a Lease for years is more then a Contract, for it is a Rent-service. 2. It is incident to the Rever­sion which is severable. 3. Vpon recovery of part in Waste, or up­on entry in part for a forfeiture, or upon surrender of part, the Rent is apportionable.

25. Note; It was adjudged 19 Eliz. in the Kings-Bench, That where one obtained a Prohibition upon Prescription de Modo Deci­mandi, by payment of a certain sum of mony at a certain day; upon which Issue was taken, and the Iury found the Modus Decimandi by payment of the said sum, but that it had been payd at another day: and the Case was well debated, and at the last it was resolved, That no Consultation should be granted; for although that the day of pay­ment be mistaken, yet it appeareth to the Court, that no Tythes in kinde were due, for which the suit was in the spiritual Court: and the Tryal of the Custom de Modo Decimandi belongeth to the Common Law, and a Consultation shall not be granted where the Spiritual Court hath not Iurisdiction of the Cause: Tanfield, chief Baron, hath the Report of this Case.

XXV. Mich. 7 Jacobi Regis.

IN an Ejectione Firmae, the Writ and Declaration were of two parts of certain Lands in Hetherset and Windham in Norfolk, and doth not say in two parts, in three parts to be divided; and yet it was good as well in the Declaration as in the Writ: for without question the Writ is good, de duabus partibus, generally, and so is the Register. See 4 E. 3. 162. 2 E. 3. 31. 2 Assis. 1. 10 Assis. 12. 10 E. 3. 511. 11 Ass. 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appeareth, that by the intendment and construction of the Law, when any parts are demanded without shewing in how many parts the whole is divided, that there remains but one part not divided: As if two parts are demanded, there remains a third part; and when three parts are divided, three remains a fourth part, &c. But when any demand is of other parts in other form, there he ought to shew the same specialty: as if one demandeth three parts of [Page 59] five parts, or four parts of six, &c. And according to this difference it was so resolved in Jourdens Case in the Kings-Bench: and accordingly Iudgment was given in this Term in the Case at Bar.

XXVI. Mich. 7 Jacobi Regis: In the Common-Pleas.
Muttons Case.

AN Action upon the Case was brought against Mutton, for calling of the Plaintiff, Sorcerer and Inchantor, who pleaded Not-guilty; and it was found against him to the damages of 6 d. And it was holden by the whole Court in the Common-Pleas, that no Action lieth for the said words: for Sortilegium est rei futuri per sortes exploratio: Et Sortilegus sive Sortilegista est qui per sortes futura praenunciat. In­chauntry est verbis aut rebus adjunctis aliquid praeter naturam moliri: whereof the Poet saith,

Carminibus Circes socios mutavit Ulyssis.

See 45 E. 3. 17. One was taken in Southwark with the Head and Visage of a Dead man, and with a Book of Sorcery in his Mail: and he was brought into the Kings-Bench before Knevet Iustice, but no Indictment was framed against him: for which the Clarks made him swear, that he should never after commit any Sorcery; and he was sent to prison: and the Head and the Book were burned at Tuthill, at the charges of the Prisoner. And the ancient Law was, as it appear­eth by Britton, that those who were attainted of Sorcery were burned: but the Law is not such at this day; but he who is convicted of such im­posture and deceit shall be fined and imprisoned. And it was said, that it was adjudged, That if one calleth another Witch, that an Action will not lie, for it is too general: Et dicitur Latine Venefica: But if one saith, She is a Witch, and hath bewitched such a one to death, an Action upon the Case lieth, if in truth he be dead. Conjuration is de­rived of these words, Con and juro: Et propria dicitur quando multi in alicujus pernitiem jurant: And in the Statute of 5 Eliz. cap. 16. it is taken for Invocation of any evil and wicked Spirits, i. est conju­rare verbis conceptis aliquos malos & iniquos spiritus; the same is made Felony: But Witchcraft, Inchantment, Charm, or Sorcery, is not felony, if not by them any person be killed or dyeth. So that Conjurati­on est verbis conceptis compellere malos & iniquos spiritus aliquod facere vel dicere, &c. But a Witch, who works any thing by any evil spirit, doth not make any Conjuration or Invocation by any powerful names of the Devil, but the wicked spirit comes to her familiarly, and there­fore is called a Familiar: But if a man be called a Conjurer, or a Witch, he shall not have any Action upon the Case, unless that he saith, That he is a Conjurer of the Devil, or of any evil or wicked spirit: or, that one is a Witch, and that she hath bewitched any one to death, as is before said.

And note, that the first Statute which was made against Conjura­tion, Witchcraft, Sorcery, and Inchantment, was the Act of 33 H. 8. cap. 8. and by it they were Felony in certain cases special: but that Act was repealed by the Statute of 1 E. 6. cap. 12.

XXVII. Mich. Term, 7 Jacobi Regis: In the Court of Wards.
Sir Allen Percies Case.

SIr John Fitz and Bridget his Wife, being Tenants for life of a Te­nement called Ramshams, the remainder to Sir John Fitz in tail, the remainder to Bridget in tail, the Reversion to Sir John and his Heirs: Sir John, and Bridget his Wife, by Indenture demised the said Tenement to William Sprey for divers years yet to come, except all Trees of Timber, Oaks and Ashes, and liberty to carry them away, rendering Rent, and afterwards Sir John dyed, having issue Mary his daughter, now the Wife of Sir Allen Percy Knight: and after­wards the said William Sprey demised the same Tenement to Sir Allen for seven years: The Question was, Whether Sir Allen, having the immediate inheritance in the right of his Wife, expoctant upon the Estate for the life of Bridget, and also having the possession by the said Demise, might cut down the Timber Trees, Oaks, and Ashes: And it was objected, that he might well do it: for it was resolved in Saunders Case, in the fifth part of my Reports, fo. 12. That if Lessee for years, or for life, assigns over his term or Estate unto another, ex­cepting the Mines, or the Trees, or the Clay, &c. that the exception is voyd, because that he cannot except that which he cannot lawfully take, and which doth not belong unto him by the Law. But it was answered and resolved by the two chief Iustices, and the chief Baron, That in the Case at Bar, the Exception was good without question, because that he who hath the Inheritance, joyns in the Lease with the Lessee for life. And it was further resolved, That if Tenant for life Leaseth for years, excepting the Timber Trees, the same is lawfully and wisely done: for otherwise, if the Lessee or Assignee cutteth down the Trees, the Tenant for life should be punished in Waste▪ and should not have any remedy against the Lessee for years: and also if he demiseth the Land without exception, he who hath the immediate Estate of Inheri­tance, by the assent of the Lessee, may cut down all the Timber Trees, which when the term ended, all should be wasted, and then the Tenant for life should not have the Boots which the Law giveth him, nor the pawnage and other profits of the said Trees, which he lawfully might take: But when Tenant for life upon his Lease excepteth the Trees, if they be cut down by the Lessor, the Lessee or Assignee shall have an Action of Trespass, Quare vi & armis, and shall recover damages ac­cording to his loss.

And this case is not like to the said case of Saunders, which was af­firmed to be good Law; for there the Lessee assigned over his whole interest, and therefore could not except the Mines, Trees, and Clay, &c. which he had not but as things annexed to the Land: and therefore he could not have them when he had departed with his whole interest, nor he could not take them either for Reparations or otherwise: But when Tenant for life Leaseth for years, except the Timber Trees, the same remaineth yet annexed to his Freehold, and he may command the Lessee to take them for necessary Reparations of the Houses. And in the said case of Saunders, a Iudgment is cited between Foster and Miles [Page 61] Plaintiffs, and Spencer and Bourd Defendants, That where Lessee for years assigns over his term, except the Trees, that Waste in such case shal be brought against the Assignee, but in this case without questi­on Waste lieth against the Tenant for life, and so there is a differ­ence, &c.

XXVIII. Mich. Term, 7 Jacobi Regis: In the Court of Wards.
Hulmes Case.

THe King (in the right of his Dutchy of Lancaster) Lord: Richard Hulm (seised of the Mannor of Male in the County of Lancaster, holden of the King as of his Dutchy by Knights service) Mesne: and Robert Male (seised of Lands in Male, holden of the Mesn as of his said Mannor by Knights service) Tenant. Richard Hulm dyed; after whose death, 31 Hen. the eight, it was found, that he dyed seised of the said Menalty, and that the same descended to Edward his Son and Heir within age, and found the Tenure aforesaid, &c. And during the time that he was within age, Robert Male the Tenant dyed; after which, in anno 35 H. 8. it was found by Office, That Robert Male dyed seised of the said Tenancy peravail, and that the same descended to Richard his Son and Heir within age, and that the said Tenancy was holden of the King, as of his said Dutchy, by Knights service; whereas in truth the same was holden of Edward Hulm, then in Ward of the King, as of his Menalty: for which the King seised the Ward of the Heir of the Tenant. And afterwards, anno quarto Jacobi Regis that now is, after the death of Richard Male, who was lineal Heir of the said Robert Male, by another Office it was found, That the said Richard dyed seised of the said Tenancy, and held the same of the King, as of his Dutchy, by Knights service, his Heir within age: whereupon Richard Hulm, Cosin and Heir of the said Richard Hulm, had preferred a Bill to be admitted to his Traverse of the said Office found in quarto Jacobi Re­gis: And the Question was, Whether the Office found in 35 H. 8. be any estoppel to the said Hulm, to Traverse the said last Office? or if that the said Hulm should be driven first to Traverse the Office of 35 H. 8.

And it was objected, That he ought first to Traverse the Office of 35 H. 8. as in the Case of 26 E. 3. 65. That if two Fines be levyed of Lands in ancient Demesn, the Lord of whom the Land is holden ought to have a Writ of Deceit to reverse the first Fine; and in that the second Fine shall not be a Bar: And that the first Office shall stand as long as the same remains in force.

To which it was answered and resolved by the two Chief Iustices and the Chief Baron, and the Court of Wards, That the finding of an Office is not any estoppel, for that is but an enquest of Office, and the party grieved shall have a Traverse to it, as it hath been confessed, and therefore without question the same is no estoppel; But when an Office is found falsly, that Land is holden of the King by Knights ser­vice in capite, or of the King himself in Socage, if the Heir sueth a general Livery, now it is holden in 46 E. 3. 12. by Mowbray and Persey, that he shall not after add, that the Land is not holden of the [Page 62] King; but that is not any estoppel to the Heir himself who sueth the Livery, and shall not conclude his Heir: for so saith Mowbray himself expresly in 44 Assis. pl. 35. That an Estoppel by suing of Livery shall estop onely himself the Heir during his life: And in 1 H. 4. 6. b. there the case is put of express confession and suing of Livery by the issue in tayl upon a false Office: and there it is holden, that the Iurors upon a new Diem clausit extremum, after the death of such special Heir, are at large, according to their conscience, to finde that the Land is not holden, &c. for they are sworn ad veritatem dicendum: and their finding is called veredictum, quasi dictum veritatis; which reason also shall serve, when the Heir in Fee-simple sueth Livery upon a false Office, and the Iurors after his death ought to finde according to the truth: So it is said 33 H. 6. 7. by Laicon, that if two sisters be found Heirs, whereof the one is a Bastard, if they joyn in a Suit of Livery, she which joyneth with the Bastard in the Livery, shall not alledg Bastar­dy in the other: but there is no Book that saith, that the Estoppel shall endure longer then during his life: and when Livery is sued by a spe­cial Heir, the force and effect of the Livery is executed and determined by his death, and by that the Estoppel is expired with the death of the Heir; but that is to be intended of a general Livery: but a special Livery shall not conclude one: But as it is expressed, the words of a general Livery are; When the Heir is found of full age: Rex Es­cheatori, &c. Scias quod cepimus homigium I. filii & haeredis B. de­functi de omnibus terris & tenementis quae idem B. Pater suus tenuit de nobis in capite, die quo obiit, & ei terras & tenement. illa reddidimus, ideo tibi praecipimus, &c. And when the Heir was in Ward, at his full age, the Writ of Livery shall say, Rex. &c. Quia I. filius & haeres B. defuncti qui de nobis tenuit in capite aetatem suam coram te sufficien­ter probavit, &c. Ceperimus homagium ipsius I. de omnibus terris & tenementis, quae idem B. Pater suus tenuit de nobis in capite die quo obiit, & ei terras & tenement. illa reddidimus, & ideo tibi praecipimus, ut supra, &c. Which Writ is the Suit of the Heir, and therefore although that all the words of the Writ are the words of the King, as all the Writs of the King are; and although that the Livery be general, de omnibus terris & tenementis de quibus B. pater I. tenuit de nobis in capite die quo obiit, without direct affirmation that any Mannor in particular is holden in capite, and notwithstanding that the same is not at the pro­secution of the Kings Writ, and no Iudgment upon it; yet because the general Livery is founded upon the Office, and by the Office it was found, That divers Lands or 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 [Page 63] 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 [Page 64] 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 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 [Page 65] 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 [Page 66] 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 Lease be made to one for the lives of J. S. and J. N. there the Freehold doth not determine by the death of one of them, for the reasons and causes given in the Case of Brudnel, in the fifth part of my Reports, fol. 9 Which Case was affirmed to be good Law by the whole Court.

XXXIII. Easter Term, anno 8 Jacobi: In the Common-Pleas.
Heydon and Smiths Case.

RIchard Heydon brought an Action of Trespass against Michael Smith and others, of breaking of his Close called the Moor in Ugley in the County of Essex the 25 day of June in the fifth year of the King, & quendam arborem suum ad valentiam 40 s. ibidem nuper cres­cen. succiderunt: The Defendants said, that the Close is, and at the time of the Trespass was the Freehold of Sir John Leventhrop Knight, &c. and that the said Oak was a Timber Tree of the growth of thirty years and more, and justifies the cutting down of the Tree by his com­mandment: The Plaintiff replyeth and saith, That the said Close, and a House, and 28 Acres of Land in Ugley, are Copyhold, and par­cel of the said Mannor of Ugley, &c. of which Mannor Edward Le­venthrop Esquire. Father of the said Sir John Leventhrop, was seised in Fee, and granted the said House, Lands and Close to the said Richard Heydon and his Heirs by the Rod at the Will of the Lord, according to the custom of the said Mannor: and that within the said Mannor there is such a custom, Quod quilibet tenens Customar. ejus­dem Manerii sibi, & haeredibus suis, ad voluntatem Domini, &c. a toto tempore supradicto usus fuit, & consuevit ad ejus libitum amputare ramos omnimodum arborum, called Pollingers, or Husbords, super terris & tenem. suis Customar. crescen. pro ligno combustibili, ad like libitum suum applicand. & in praedicto Messuagio comburend. and also to cut down and take at their pleasure all manner of Trees called Pollengers or Husbords, and all other Timber trees, super ejusdem Custumariis suis crescen. for the reparation of their Houses built upon the said Lands and customary Tenements; and also for Ploughbote and Cartbote: and that all Trees called Pollengers or Husbords, and all other trees at the time of the Trespass aforesaid, or hitherto growing upon the aforesaid Lands and Tenements customary of the said Richard Heydon, were not sufficient, nor did serve for the necessary uses aforesaid: And that the said Richard Heydon, from the time of the said Grant made un­to him, had maintained and preserved all trees, &c. growing upon the said Lands and Tenements to him granted: And that after the death of the said Edward Leventhrop, the said Mannor descended to the said Sir John Leventhorp: and that at the time of the Trespass the afore­said Messuage of the said Richard Heydon was in decay, & egebat ne­cessariis reparationibus in Maremio ejusdem. Vpon which the Defen­dant did demur in Law.

And this Case was oftentimes argued at the Bar: and now this Term it was argued at the Bench by the Iustices: And in this case these points were resolved.

1. That the first part of the Custom was absurd and repugnant, scil. Quod quilibet tenens Customarii ejusdem Manerii habens & tenens aliqua [Page 68] terras seu tenementa Custom. &c. usus fuit amputare ramos omnimodum arborum, vocat. Pollingers, &c. pro ligno combustabili, &c. in praedicto Messuagio comburend. (which ought to be in the Messuage of the Plain­tiff, for no other Messuage is mentioned before) which is absurd and re­pugnant, That every customary Tenant should burn his Fuel in the Plaintiffs house: But that Branch of the Custom doth not extend un­to this case: for the last part of the custom, which concerneth the cut­ing down of the Trees, concerns the point in question; and so the first part of the custom is not material.

It was objected, That the pleading, that the Messuage of the Plain­tiff was in decay, & egebat necessariis reparationibus in maremio ejus­dem, was too general: for the Plaintiff ought to have shewed in parti­cular, in what the Messuage was in decay: as the Book is in 10 E. 4. 3. He who justifieth for Housebote, &c. ought to shew that the House hath cause to be repaired, &c.

To which it was answered by Coke chief Iustice, That the said Book proved the pleading in the case at Bar was certain enough, scil. Quod Messuagium praed. egebat necessariis reparationibus in maremio, without shewing the precise certainty: and therewith agrees 7 H. 6. 38. and 34 H. 6. 17.

2. It was also answered and resolved, That in this case without question it needs not to alledg more certainty, for here the Copyholder according to the custom doth not take it, but the Lord of the Mannor doth cut down the Tree, and carryeth it away where the rest was not sufficient, and so preventeth the Copyholder of his benefit, and there­fore he needeth not to shew any decay at all, but onely for increasing of the damages; for the Lord doth the wrong when he cutteth down the Tree which should serve for reparations when need should be.

3. It was resolved, That of common Right, as a thing incident to the Grant, the Copyholder may take Housebote, Hedgbote, and Plow­bote upon his Copyhold: Quia concesso uno conceduntur omnia sine quibus id consistere non potest: Et quando aliquis aliquid concedit, con­cedere videtur & id sine quo res ipsa esse non potest: and therewith a­greeth 9 H. 4. Waste 59. But the same may be restrained by custom, scil. That the Copyholder shall not take it unless by assignment of the Lord or his Bayliff, &c.

4. It was resolved, That the Lord cannot take all the Timber Trees, but he ought to leave sufficient for the Reparation of the Custo­mary houses, and for Ploughbote, &c. for otherwise great Depopulation will follow; scil. Ruine of the Houses, and decay of Tillage and Husbandry. And it is to be understood, That Bote being an ancient Saxon word, hath two significations; the one compensatio criminis, as Frithbote, which is as much as to say, to be discharged from giving amends for the breach of the peace; Manbote, to be discharged of a­mends for the death of man: And secondly, in the latter signification, (scil.) for Reparation, as was Bridgbote, Burghbote, Castlebote, Parkbote, &c. scil. Reparation of a Bridg, of a Borough, of a Castle, of a Park, &c. And it is to be known, that Bote and Estovers are all one: Estovers are derived of this French word, Estouer, i. e. fovere; i. e. to keep warm, to cherish, to sustain, to defend: And there are four kinds of Estovers, (scil.) ardendi, arandi, construendi, & claudendi: (scil.) Firebote, Housebote, Ploughbote, and Hedgbote.

5. It was resolved, That the Copyholder shall have a general Action of Trespass against the Lord, Quare clausum fregit, & arborem [Page 69] suam, &c. succidit; for Custom hath fixed it to his Estate against the Lord: and the Copyholder in this case hath as great an interest in the Timber Trees, as he hath in his Messuage which he holdeth by Copy: and if the Lord breaketh or destroyeth the House, without que­stion the Copyholder shall have an Action of Trespass against his Lord, Quare Domum fregit, and by the same Reason for the Timber Trees which are annexed to the Land, and which he may take for the Reparation of his Copyhold Messuage, and without which the Messuage cannot stand. Trinit. 40 Eliz. Rot. 37. in the Kings-Bench, between Stebbing and Grosener, The custom of the Mannor of Netherhall in the County of Suffolk was, that every Copyholder might lop the Pol­lengers upon his Copyhold pro ligno combustibili, &c. And the Lord of the Mannor cut down the Pollingers, being upon the Plaintiffs Copy­hold, upon which he brought his Action upon the case, because that the lops of the Trees in such case did belong to the Copyholder, and they were taken by the Lord. See Taylors case in the fourth part of my Reports 30 and 31. and see 5 H. 4 2. Guardian in Knight-service, who hath Custodiam terrae, shall have an Action of Trespass for cut­ing down the Trees against the Heir who hath the inheritance: Vide 2 H. 4. 12. A Copyholder brought an Action of Trespass, Quare clau­sum fregit, & arbores succidit: and see 2 E. 4. 15. A Servant who is commanded to carry goods to such a place, shall have an Action of Tres­pass or Appeal: 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. It after taking the goods, the owner hath his goods again, yet he shall have a general Action of Trespass, and upon the evidence the damages shall be mitigated: so is the better Opinion in 11 H. 4. 23. That he who hath a special property of the goods at a certain time, shall have a general Action of Trespass against him who hath the general pro­perty, and upon the evidence damages shall be mitigated; but clear­ly, the Baylee, or he who hath a special property, shall have a general Action of Trespass against stranger, and shall recover all in damages, because that he is chargeable over. See 21 H. 7. 14. b. acc. And it is holden in 4 H. 7. 3. That Tenant at sufferance shall have an Action of Trespass in respect of the possession, and if the Defendant plead Not-guilty, but he cannot make title, 30 H. 6. Trespass 10. 15 H. 7. 2. The King, who hath profits of the Land by Out-lawry, shall have an Action of Trespass, or take goods damage-feasants: 35 H. 6. 24. 30 H. 6. Tresp. 10. &c. Tenant at will shall have an Action of Tres­pass: 21 H. 7. 15. and 11 H. 4. 23. If a man Bayl goods which are taken out of his possession, if the Baylee recover in Trespass, the same shall be a good Bar to the Baylee: 5 H. 4. 2. In a Writ of Waste brought against Tenant for life, and assigned the Waste in cutting down of Trees: the Defendant pleaded in Bar, that the Plaintiff himself cut them: and Culpeper, the Serjeant of the Plaintiff, ob­jected against it, that it should be no Plea, because the Defendant had not any thing in the Freehold, no more then a meer stranger; and if a stranger had cut down the same Trees, he should be chargeable in Waste.

Also in this case, we should be at a mischief if we should not recover against him; for if at another time he bringeth an Action of Trespass against us, he shall recover damages against us for the cutting, id est, for the value of the Trees: and yet it was holden by the Court, that the same was a good Bar: And it was said by the Court that the Plaintiff was not at any mischief in this case: for in as much as the Defendant [Page 70] shall have advantage now to discharge himself of Waste against the Plaintiff, upon this matter he shall be barred for ever of his Action of Trespass, scil. to recover the value of the Trees, which was the mis­chief objected by Culpeper: But without question he shall have an Action of Trespass, Quare clausum fregit, for the Entry of the Lessor, and for the cutting of the Trees, but he shall not recover the value of the Trees, because he is not chargeable over, but for the special loss which he hath, scil. for the loss of the Pawnage and of the shadow of the Trees, &c. See Fitz. Trespass ultimo, in the Abridgment: And afterwards, the same Term, Iudgment was given on the principal case for the Plaintiff.

XXXIV. Easter Term, 8 Jacobi: In the Com­mon-Pleas.

THe Parishioners of St. Alphage in Canterbury by custom ought to choose the Parish-Clark, whom they chose accordingly: The Parson of the Parish, by coulor of a new Canon made at the Convoca­tion in the [...] year of the King that now is (which is not of force to take away any Custom) drew the Clark before Doctor Newman, Official of the Archbishop of Canterbury, to deprive him, upon the point of the right of Election, and for other causes; and upon that it was moved at the Bar to have a Prohibition: And upon the hearing of Doctor Newman and himself, and his Councel, a Prohibition was granted by the whole Court, because the party chosen is a meer temporal man, and the means of choosing of him, scil. the custom, is also meer temporal, so as the Official cannot deprive him; but upon occasion the Parishoners might displace him: And this Office is like to the Office of a Churchwarden, who although they be chosen for two years, yet for cause they may displace them, as it is holden in 26 H. 8. 5. And although that the execution of the Office concerneth Divine Service, yet the Office it self is meer temporal: See 3 E. 3. Annuity 30. He who is Clark of a Parish is removable by the Parishioners: See 18 E. 3. 27: A gift in tayl was made of the Serjanty or Clarkship of the Church of Lincoln, and there adjudged, that the Office is temporal, and shall not be tryed in the Ecclesiastical Court, but in the Kings Court: And it is to be known, that the deprivation of a man of a temporal Office, or place, is a temporal thing, upon which no Appeal lyeth by the Statute of 25 H. 8. but an Assise, as in 4 Eliz. Dyer 209. The President of Magdalen Colledg in Oxford was deprived of the Bishop of Winchester their Visitor; He shall not have an Appeal to the Delegates, for the Deprivation is temporal, and not spiritual; but he may have an Assise: and therewith agreeth the Book of 8 Ass. Siracses Case: But if a Dean of a Cathedral Church, of the Patron­age of the King, be deprived before the Commissioners of the King, he may appeal to the Delegates within the said Act of 25 H. 8. For a Deanry is a spiritual promotion, and not temporal: and before 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.