shillings eight pence for the Admittance of a Copyholder in Fee-simple upon a Surrender made For this is not like to a voluntary Grant as when the Copyholder hath but an Estate for life and dieth Or if he hath an Estate in Fee-simple and committeth Felony there Arbitrio Dom. res estimari debet but when the Lord is compellable to admit him to whose use the Surrender is And when Cestui que use is admitted he shall be in by him who made the Surrender and the Lord is but an Instrument to present the same And therefore in such Case the value of two years for such an Admittance is unreasonable especially when the value of the Cottage and one acre of Pasture is a Rack at fifty three shillings by the year 5. It was resolved That the Surjoynder is no more then what the Law saith For in this Case in the Iudgment of the Law the Fine is unreasonable and therefore the same is but ex abundanti and now the Court ought to judge upon the whole speciall matter And for the Causes aforesaid Iudgment was given for the Plaintiff And Coke chief Iustice said in this Case That where the usage of the Court of Admiralty is to amerce the Defendant for his default by his discretion as it appeareth in 19 H. 6. 7. That if the Amerciament be outrageous and excessive the same shall not bind the party and if it be excessive or not it shall be determined in the Court in which the Action shall be brought for the levying of it And the Writ of Account is against the Bayliff or Guardian Quod reddat ei rationabilem Computum de exitibus Manerii And the Law requireth a thing which is reasonable and no excesse or extremity in any thing II. Mich. 6 Jacobi in the Common Pleas. Porter and Rochesters Case THis Term Lewis and Rochester who dwelt in Essex within the The Statute of 23 H 8. of citing out of Dioces Dioces of London were sued for substraction of Tithes growing in B. within the County of Essex by Porter in the Court of the Arches of the Bishop of Canterbury in London And the Case was That the Archbishop of Canterbury hath a peculiar Iurisdiction of fourteen Parishes called a Deanry exempted from the Authority of the Bishop of London whereof the Parish of S. Mary de Arcubus is the Chief And the Court is called the Arches because the Court is holden there And a great question was moved If in the said Court of Arches holden in London within his Peculiar he might cite any dwelling in Essex for substraction of Tithes growing in Essex Or if he be prohibited by the Statute of the twenty third year of King Henry the eighth cap. 9. And after that the matter was well debated as well by Councell at the Bar as by Dr. Ferrard Dr. James and others in open Court and lastly by all the Iustices of the Common Pleas A Prohibition was granted to the Court of Arches And in this Case divers Points were resolved by the Court. 1. That all Acts of Parliament made by the King Lords and Commons of Parliament are parcell of the Laws of England and therefore shall be expounded by the Iudges of the Laws of England and not by the Civilians and Commonists although the Acts concern Ecclesiasticall and Spirituall Iurisdiction And therefore the Act of 2 H. 4. cap. 15. by which in effect it is enacted Quod nullus teneat doceat informet c. clam vel publice aliquam nefandam opinionem contrariam sidei Catholicae seu determinationi Ecclesiae sacro-sanctae nec de hujusmodi secta nephandis Doctrinis Conventiculas faciat And that in such Cases the Diocessan might arrest and imprison such Offender c. And in 10 H. 7. the Bishop of London commanded one to be imprisoned because that the Plaintiff said that he ought not to pay his Tithes to his Curat and the party so imprisoned brought an Action of False Imprisonment against those who arrested him by the commandment of the Bishop and there the matter is well argued What words are within the said Statute and what without the Statute So upon the same Statute it was resolved in 5 E. 4. in Keysars case in the Kings Bench which you may see in my Book of Presidents And so the Statutes of Articuli Cleri de Prohibitione regia De Circumspecte agatis of 2 E. 6. cap. 13. and all other Acts of Parliament concerning Spirituall Causes have alwaies been expounded by the Iudges of the Common Law as it was adjudged in Woods Case Pasch 29 Eliz. in my Notes fol. 22. So the Statute of 21 H. 8. cap. 13. hath been expounded by the Iudges of the Realm concerning Pluralities and the having of two Benefices Common Laws and Dispensations see 7 Eliz. Dyer 233. The Kings Courts shall adjudge of Dispensations and Commendams See also 17 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dyer 327 18 Eliz. Dyer 352. and 347. 22 Eliz. Dyer 377. Construction of the Statute cap. 12. Smiths Case concerning Subscription which is a meer Spirituall thing Also it appeareth by 22 Eliz. Dyer 377. That for want of subscription the Church was alwaies void by the said Act of 23 Eliz. and yet the Civilians say that there ought to be a Sentence Declaratorie although that the Act maketh it void 2. It was resolved by Coke chief Iustice Warberton Daniel and Foster Iustices That the Archbishop of Canterbury is restrained by the Act of 23 H. 8. cap. 9. to cite any one out of his own Diocesse or his Peculiar Iurisdiction although that he holdeth his Court of Arches within London And first it was objected That the Title of the Act is An Act that no person shall be cited out of the Diocess where he or she dwelleth except in certain Cases And here the Archbishop doth not cite the said Party dwelling in Essex out of the Diocesse of London for he holdeth his Court of Arches within London 2. The Preamble of the Act is Where a great number of the Kings Subjects dwelling in divers Diocesses c. And here he doth not dwell in divers Diocesses 3. Far out of the Diocesse where such men c. dwell and here he doth not dwell far out c. 4. The body of the Act is No manner of person shall be cited before any Ordinance c. out of the Diocesse or peculiar Iurisdiction where the person shall be inhabiting c. And here he was not cited out of the Dioces of London To which it was answered and resolved That the same was prohibited by the said Act for divers Causes 1. As to all the said Objections One answer makes an end of them all For Diocesis dicitur distinctio vel divisio sive gubernatio quae divisa diversa est ab Ecclesia alterius Episcopatus Commissa Gubernatio in unius and is derived a Diâ— quod est duo electio id est
to the President and Councel of York between Lock Plaintiff and Bell and others Defendants and that was a Replevyn in English was granted by the said President and Councel which I affirmed was utterly against Law For at the Common Law no Replevyn ought to be made but by Original Writ directed to the Sheriff And the Statute of Marlbridg cap. 21. and West 1. cap. 17. hath authorized the Sheriff upon Plaint made to him to make a Replevyn and all that appeareth by the said Statutes and by the Books of 29 E. 3. 21. 8 Eliz. Dyer 245. And the King neither by his Instructions had made the President and Councel Sheriffs nor could grant to them power to make a Replevyn against the Law nor against the said Acts of Parliament but the same ought to be made by the Sheriff And all that was affirmed by the Lord Chancellor for very good Law And I say that it might well be that we have granted other Prohibitions in other Cases of English Replevyns Another Prohibition I confess we have granted between Sir Bethel Knight now Sheriff of the County of York as Executor to one Stephenson who had made him and another his Executors and preferred an English Bill against Chambers and divers others in the nature of an Action upon the Case upon a Trover and Conversion in the life of the Testator of goods and Chattels to the value of 1000 l. and because the other Executor would not joyn with him although he was named in the Bill he had not any remedy at the Common Law he prayed remedy there in Equity and I say that the President and Councel have not any authority to proceed in that Case for divers causes 1. Because there is an express limitation in their Commission that they shall not hold plea between party and party c. unless both parties or one of them tanta paupertate sunt gravati that they cannot sue at the Common Law and in that case the Plaintiff was a Knight and Sheriff and a man of great ability 2. By that Suit the King was deceived of his Fine for he ought to have had 200 l. Fine because that the damages amounted to 4000 l. and that was one of the causes that the Sheriff began his Suit there and not at the Common Law another cause was that their Decrees which they take upon them are final and uncontroulable either by Error or any other remedy And yet the President is a Noble-man but not learned in the Law and those which are of the Councel there although that they have the countenance of Law yet they are not learned in the Law and nevertheless they take upon them final and uncontroulable Decrees in matters of great importance For if they may deny Relief to any at their pleasure without controulment so they may do it by their final Decrees without Error Appeal or other remedy which is not so in the Kings Courts where there are five Iudges for they can deny Iustice to none who hath Right nor give any Iudgment but the same is controulable by a Writ of Error c. And if we shall not grant Prohibitions in Cases where they hold Plea without authority then the subjects shall be wrongfully oppressed without Law and we denyed to do them Iustice And their ignorance in the Law appeared by their allowance of that Suit scil That the one Executor had no remedy by the Common Law because the other would not joyn in suit with him at the Common Law whereas every one learned in the Law knoweth that summons and severance lieth in any Suit brought as Executors and this also in that particular Case was affirmed by the Lord Chancellor and he much inveighed against Actions brought there upon Trover and Conversion and said that they could not be found in our ancient Books Another Prohibition I confess we have granted between the L. Wharton who by English Bill sued before the Counsel Banks Buttermere and others for fishing in his several Fishings in Darwent in the County of C. in the nature of an Action of Trespass at the Common Law to his damages of 200 l. and for the causes next before recited and because the same was meerly determinable at the Common Law we granted a Prohibition and that also was allowed by the Lord Chancellor And as to the case of Information upon the Riotous Rescous I having forgotten to speak to that the King himself asked what the Case was to whom I answered that the case was That one exhibited a Bill there in the nature of an Action of Debt upon a Mutuatus against Watson who upon his Oath affirmed that he had satisfied the Plaintiff and that he owed him nothing and yet because the Defendant did not deny the Debt the Councel decreed the same against him and upon that Decree the Pursuivant was sent to arrest the said Watson who arrested him upon which the Rescous was made and because that the Suit was in the nature of an Action of Debt upon a Mutuatus at the Common Law and the Defendant at the Common Law might have waged his Law of which the Defendant ought not to be barred by that English Bill quia beneficium juris nemini est auferendum the Prohibition was granted and that was affirmed also by the Lord Chancellor whereupon I concluded that if the principal cause doth not belong unto them all their proceedings was coram non Judice and then no Rescous could be done but the Lord Chancellor said that though the same cannot be a Rescous yet it was a Riot which might be punished there which I denyed unless it were by course of Law by force of a Commission of Oyer and Terminer and not by an English Bill but to give the King full satisfaction in that point the truth is the said Case was debated in Court and the Court inclined to grant a Prohibition in the said case but the same was stayed to be better advised upon so as no Prohibition was ever under Seal in the said Case Also I confess that we have granted divers Prohibitions to stay Suits there by English Bill upon penal Statutes for the manner of prosecution as well for the Action Proces c. as for the count is to be pursued and cannot be altered and therefore without question the Councel in such cases cannot hold Plea which was also affirmed by the Lord Chancellor And I said that it was resolved in the Reign of Queen Eliz. in Parots Case and now lately in the Case of the President and Councel of Wales That no Court of Equity can be erected at this day without Act of Parliament for the reasons and causes in the Report of the said Case of Parrot And the King was well satisfied with these reasons and causes of our proceedings who of his Grace gave me his Royall hand and I departed from thence in his favour And the surmise of the Number and that the Prohibition in the said Case
Tenements were holden of the King in capite for this cause the suing of the Writ shall conclude the Heir onely which sueth the Livery and after his death the Iurors in a new Writ of Diem clausit extremum are at large as before is said And if that Iury finde falsly in a Tenure of the King also the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King c. in Socage the Heir may traverse the last Office for by that he is grieved onely and he shall not be driven to traverse the first Office and when the Father sueth Livery and dyeth the conclusion is executed and past as before is said And note that there is a special Livery but that proceeds of the Grace of the King and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda c. or to the Heir within age as it appeareth in 21 E. 3. 40. And that is general and shall not comprehend any Tenure as the general Livery doth and therefore it is not any estoppel without question And at the Common Law a special Livery might have been granted before any Office found but now by the Statute of 33 H 8. cap. 22. it is provided That no person or persons having Lands or Tenements above the yearly value of 20 l. shall have or sue any Livery before inquisition or Office found before the Escheator or other Commission But by an express clause in the same Act Livery may be made of the Lands and Tenements comprized or not comprized in such Office so that if Office be found of any parcel it is sufficient And if the Land in the Office doth exceed 20 l. then the Heir may sue a general Livery after Office thereof found as is aforesaid but if the Land doth not exceed 5 l. by the year then a general Livery may be sued without Office by Warrant of the Master of the Wards c. See 23 Eliz. Dyer 177. That the Queen ex debito Justitiae is not bound at this day after the said Act of 33 H 8 to grant a special Livery but it is at her election to grant a special Livery or to drive the Heir to a general Livery It was also resolved in this Case That the Office of 35 H. 8. was not traversable for his own Traverse shall prove that the King had cause to have Wardship by reason of Ward And when the King cometh to the possession by a false Office or other means upon a pretence of right where in truth he hath no right if it appeareth that the King hath any other right or interest to have the Land there none shall traverse the Office or Title of the King because that the Iudgment in the Traverse is Ideo consideratum est quod manus Domini Regis a possessione amoveantur c. which ought not to be when it appeareth to the Court that the King hath right or interest to have the Land and to hold the same accordingly See 4 H. 4. fo 33. in the Earl of Kents Case c. XXIX Mich. 7 Jacobi Regis NOte The Priviledg Order or Custom of Parliament either Parliament of the Vpper House or of the House of Commons belongs to the determination or decision onely of the Court of Parliament and this appeareth by two notable Presidents The one at the Parliament holden in the 27 year of King Henry the sixth There was a Controversie moved in the Vpper House between the Earls of Arundel and of Devonshire for their seats places and preheminences of the same to be had in the Kings presence as well in the High Court of Parliament as in his Councels and elsewhere The King by the advice of the Lords spiritual and temporal committed the same to certain Lords of Parliament who for that they had not leisure to examine the same it pleased the King by the advice of the Lords at his Parliament in anno 27 of his Reign That the Iudges of the Land should hear see and examine the Title c. and to report what they conceive herein The Iudges made report as followeth That this matter viz. of Honor and precedency between the two Earls Lords of Parliament was a matter of Parliament and belonged to the Kings Highness and the Lords spiritual and temporal in Parliament by them to be decided and determined yet being there so commanded they shewed what they found upon examination and their Opinions thereupon Another Parliament in 31 H. 6. which Parliament begun the sixth of March and after it had continued sometime it was prorogued until the fourteenth of February and afterwards in Michaelmas Term anno 31 H. 6. Thomas Thorp the Speaker of the Commons House at the Suit of the Duke of Buckingham was condemned in the Exchequer in 1000 l. damages for a Trespass done to him The 14 of February the Commons moved in the Vpper House That their Speaker might be set at liberty to exercise his place The Lords refer this Case to the Iudges and Fortescue and Prisoit the two chief Iustices in the name of all the Iudges after sad consideration and mature deliberation had amongst them answered and said That they ought not to answer to this question for it hath not been used aforetime That the Iustices should in any wise determine the Priviledg of this High Court of Parliament for it is so high and mighty in its nature that it may make Laws and that that is Law it may make no Law and the determination and knowledg of that Priviledg belongeth to the Lords of the Parliament and not to the Iustices But as for proceedings in the lower Courts in such cases they delivered their Opinions And in 12 E. 4. 2. in Sir John Pastons case it is holden that every Court shall determine and decide the Priviledges and Customs of the same Court c. XXX Hillary Term 7 Jacobi Regis In the Star-Chamber Heyward and Sir Iohn Whitbrokes Case IN the Case between Heyward and Sir John Whitbroke in the Star-Chamber the Defendant was convicted of divers Misdemeanors and Fine and Imprisonment imposed upon him and damages to the Plaintiff and it was moved that a special Proces might be made out of that Court to levy the said damages upon the Goods and Lands of the Defendant and it was referred to the two chief Iustices whether any such Proces might be made who this Term moved the Case to the chief Baron and to the other Iudges and Barons and it was unanimously resolved by them That no such Proces could or ought to be made neither for the damages nor for the costs given to the Plaintiff for the Court hath not any power or Iurisdiction to do it but onely to keep the Defendant in prison until he pay them For for the Fine due to the King the Court of Star-Chamber cannot make forth any Proces for the levying of the
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 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 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
the plea for the same is no part of the suggestion which onely is the substance of the plea and therefore the Modus Decimandi is proved by two Witnesses according to the Statute of 2 E. 6. cap. 13. and not the refusal which proveth that the Modus Decimandi is onely the matter of the suggestion and not the refusal 5. All the said five matters of Discharge of Tythes mentioned in the said Branch of the Act of 2 E. 6. being contained within a suggestion ought to be proved by two Witnesses and so have been always from the time of the making of the said Act and therefore the Statute of 2 E. 6. clearly intended that Prohibitions should be granted in such causes 6. Although that they would allow bona fide de Modo Decimandi without refusal yet if the Parson sueth there for Tythes in kinde when the Modus is proved the same being expresly prohibited by the Act of 2 E. 6. a Prohibition lieth although the Modus be spiritual as appeareth by the said Book of 4 E. 4. 37. and other the Cases aforesaid And afterwards in the third day of debate of this case before his gracious Majesty Dr. Bennet and Dr. Martin had reserved divers consultations granted in Causa Modi Decimandi thinking that those would make a great impression in the Opinion of the King and thereupon they said That Consultations were the Iudgments of Courts had upon deliberation whereas Prohibitions were onely granted upon surmises And they shewed four Presidents One where three joyntly sued a Prohibition in the case of Modo Decimandi and the Consultation saith Pro eo quod suggestio materiaque in eodem contenta minus sufficiens in Lege existit c. 2. Another in Causa Modo Decimandi to be payd to the Parson or Vicar 3. Where the Parson sued for Tythes in kinde and the Defendant alledged Modus Decimandi to be payd to the Vicar The fourth where the Parson libelled for Tythe Wool and the Defendant alledged a custom to reap corn and to make it into sheaves and to set forth the tenth sheaf at his charges and likewise of Hay to sever it from the nine cocks at his charge in full satisfaction of the Tythes of the Corn Hay and Wool To which I answered and humbly desired the Kings Majesty to observe that these have been reserved for the last and center point of their proof And by them your Majesty shall observe these things 1. That the Kings Courts do them Iustice when with their consciences and oaths they can 2. That all the said Cases are clear in the Iudgment of those who are learned in the Laws that Consultation ought by the Law to be granted For as unto the first president the case upon their own shewing appeareth to be Three persons joyned in one Prohibition for three several parcels of Land each of which had a several manner of Tything and for that cause they could not joyn when their interests were several and therefore a Consultation was granted As to the second president The manner of Tything was alledged to be payd to the Parson or Vicar which was altogether uncertain As to the third president The Modus never came in debate but whether the Tythes did belong to the Parson or Vicar which being betwixt two spiritual persons the Ecclesiastical Court shall have Iurisdiction and therewith agreeth 38 E. 3. 6. cited before by Bacon and also there the Prior was of the Order of the Cistertians for if the Tythes originally belonged to the Parson any recompence for them shall not bar the Parson As unto the last president the same was upon the matter of a Custom of a Modus Decimandi for Wool for to pay the Tythe of Corn or Hay in kinde in satisfaction of Corn Hay and Wool cannot be a satisfaction for the Wool for the other two were due of common right And all this appeareth in the Consultations themselves which they shew but understand not To which the Bishop of London said that the words of the Consultation were Quod suggestio praedicta materiaque in eadem contenta minus sufficiens in Lege existet c. so as materia cannot be referred to form and therefore it ought to extend to the Modus Decimandi To which I answered That when the matter is insufficiently or uncertainly alledged the matter it self faileth for matter ought to be alledged in a good sentence and although the matter be in truth sufficient yet if it were insufficiently alledged the plea wanteth matter And the Lord Treasurer said openly to them that he admired that they would alledg such things which made more against them then any thing which had been said And when the King relied upon the said Prohibition in the Register when Land is given in discharge of Tythes the Lord Chancellor said that that was not like to this case for there by the gift of the Land in discharge of Tythes the Tythes were actually discharged but in the case De Modo Decimandi an annual sum is payd for the Tythes and the Land remains charged with the Tythes but ought to be discharged by plea de Modo Decimandi All which was utterly denyed by me for the Land was as absolutely discharged of the Tythes in casu de Modo Decimandi when an annual sum ought to be payd as where Land is given For all the Records and presidents of Prohibition in such cases are That such a sum had been always c. payd in plenam contentationem satisfactionem exonerationem omnium singularium Decimarum c. And although that the sum be not payd yet the Parson cannot sue for Tythes in kind but for the mony for as it hath been said before the Custom and the said Acts of Parliament where there is a lawful manner of Tything hath discharged the Lands from Tythes in kinde and prohibited that no suit shall be for them And although that now as it hath been said the Parsons c. may sue in the Spiritual Court pro Modo Decimandi yet without question at the first the annual payment of mony was as Temporal as annual profits of Lands were All which the King heard with much patience And the Lord Chancellor answered not to that which I had answered him in c. And after that his most excellent Majesty with all his Councel had for three days together heard the allegations on both sides He said That he would maintain the Law of England and that his Iudges should have as great respect from all his Subjects as their predecessors had had And for the matter he said That for any thing that had been said on the part of the Clergy that he was not satisfied and advised us his Iudges to confer amongst our selves and that nothing be encroached upon the Ecclesiastical Iurisdiction and that they keep themselves within their lawful Iurisdiction without unjust vexation and molestation done to his Subjects and without delay or hindering
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 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.