had Issue John his eldest Son and others viz. Christopher Richard c. and being seized of Land in Fee oâ— 100 Marks per annum value his eldest Son being dead and his Grandchild John withâ—n age he gave direction for a Lease to be made of a Faâ—m called Roushal to Christopher during the minority of his Grand-child rendring the antient Rent with power of Revocation and of Lands in Yatesbury to Richard in the same manner and the same time Chrâ—stopher and Richard by the Covin of one Woodruff a Serivener 25 Eliz. drew two Leases to Christopher and Richard for 51 years rendring 4 d. per annum and without any power of Revocation John Shulter the Grandfather being blind with age and Woodruff telling him they were according to his direction And thereupon John Shulter thâ— Grandfather sealed and delivered them And it was resolved by the Lord Ellesmere Chancellor and two Chief Justies That the said Indentures could not bind the said John Shulter because he was blind and the effect was declared to him other than in truth it was Iâ— fully agreed with Mansers Case in the second part of my Reports fol. 4. Mich. 9 Jacobi Regis Sir Anthony Ashley's Case The Case was this Sir James Creyton had bought a pretended Right of and in the Mannor of â—yddy and Millisent and divers oâ—her Lands of which Sir Anthony had long possession Upon which divers Motions were made concerning Fines acknowledged to be staid c. in the Common-Bench and Sir James not prevailing in it entred into a wicked Conspiracy with several other Defendants in the Cause to accuse the said Sir Anthony of some Capital Crimes whereby he should forfeit all his Lands Goods and Chattels which they should share amongst them and in the end Henry Smith formerly a Servant to Sir Anthony was suborned to accuse the said Sir Anthony of the Muâ—ther of William Rice late Husband of Mary Rice one of the Defendants which William was dead 18 years before and Smith was to have 500 l. for his pains to have a place procured him in the Kings Guard in Ordinary a Proteâ—tion also from the King against his Creditors and a General Pardon Of all which Smith would have assurance before he would make any Accusation of the said Sir Anthony Whereupon Articles in Writing were drawn ingrossed and sealed between Sir James Creyton of the one part and John Cantrel Servant to Hunnings by Smith's Consent and to his use on the other part By which Sir Jaâ—es Covenanted that the said Cantrel and his Heirs after the Conviction and Attainder of Sir Anthony shall have a sixth part of his Mannors c. In consideration whereof Cantrel Covenanted that he should procure Witnesses to Convict the Plaintiff of Murther or other Capital Crimes c. Which Articles were sealed 16 of Feb. 7 Jac. And for the performance of the said Articles Sir James gave Bond of 8000 l. to Cantrel Within two dayes after Smith counterfeits himself sick and then pretending to disburthen his Conscience reveales the said Murther and accused himself for poysoning the said William Rice by the said Sir Anthonies Command so that he himself was Principal Upon this Sir James procures Mary Rice the Widow of the said William Rice to prefer a Petition to the King importing the Accusation aforesaid Which Petition the King referred to the Chief Justice of the Kings-Bench who after full Examination certified the King that he found a false Conspiracy to indict Sir Anthony without any just ground and certified also the effect of the Articles Upon which the King by Advice of the Privy-Councel thought the matter fit to be sentenced in the Star-Chamber Which in the same Term upon ordinary proceeding was heard by six dayes And it was objected by the Defendants Councel That the Bill upon the said Conspiracy did not lye and that it would be dangerous to maintain it for it will deter men to prosecute against great Offenders whereby they will pass unpunished And by the Law Conspiracy lyes where a man is indicted and legitimo modo acquietus but here he was never indicted c. But to this it was Answered and Resolved by the Lord Chancellor the two Chief Justices and all the Court That in this Case the Bill was maintainable though the Party accused was not indicted and acquitted before as it was Resolved in this Court Hill 8. Jac. in Poulter's Case Besides be Sir Anthony guilty or no the Defendants are punishable for promising Bribes and Rewards to Smith to accuse the Plaintiff and the Articles to share Sir Aâ—thonies Estate after Attainder And there is a great Indignity offered to the King in assuming to Covenant that the King shall protect or pardon or that any man's Estate may be shared before Attainder And it appeared by many Witnesses that William Rice dyed not of any poysoning but of a horrible Disease got by his dissolute life which with Reverence cannot be spoken And in this Case it was Resolved That if Felony be done and one hath suspition upon probable matter that another is guilty of it he may arrest the party so suspected to bring him to Justice But in this Case three things are to be observed 1. That a Felony be done 2. That he that doth arrest hath suspition upon probable cause 3. That he himself who hath the suspition arrest the party Resolved also That if Felony be done and common fame and noise is that one hath committed it this is good cause for him that knowes of it to arrest the party and with this agrees the Book 2 H. 5. 15 16. 15 H. 7. 5. 20 H. 7. 12. 21 H. 7. 28. 7 Ed. 4. 20. 8 Ed. 4. 27. 11 Ed. 4. 4. 6. 17 Ed. 4. 5. 6. 20 Ed. 4 6. B. 7 H. 4. 25. 27 H. 8. 23. 26 H. 8 9. 7 Eliz. Dy. 226. Hill 9 Jac. Regis In this Term the Attorney and Sollicitor consulted with me if at this day upon Conviction of an Heretick before the Ordinary the Writ de Haeretico combunendo lyeth and it seems to be clear that it doth not for the Reasons and Authorities that I have reported Trin. 9 Jacob before But after they consulting with Fleming Chief Justice Tanfield Chief Baron and Williams and Crook And they upon the Report of Dr. Cosins mentioned in my said Report and some Prâ—sidents in Queen Elizabeth's time they certified the King that the said Writ lyeth but that the most sure way was to convict the Heretick before the High Commissioners Pasch 10 Jac. Regis The Lord Vaux his Case In this Term the Lord Vaux was indicted of a Premunire in the Kings-Bench upon the New Statute for refusing the Oath of Allegeance upon his Arraignment he prayed he might be tryed per Pares But iâ— was Resolved That he shall not for that Magna Charta cap. 29. Nec super cum ibimus nec super eum mittemus nisi per legale judicium parium suorum is onely to be
same Term the said Judges of the Kings Bench Barons of the Exchequer and Justice Fenner and Yelverton who were omitted before and We the Justices of the Common-Bench were commanded to attend the Council And being all assembled We of the Common-Pleas were commanded to retire and then the King demanded their Opinions in certain Points touching the High-Commission wherein they unanimously agreeing We viz. Coke Walmesly Warberton and Foster were called before the King Prince and Council where the King declared That hy the Advice of his Council and the Justices of the Kings Bench and Barons he will reform the High-Commission in divers Points which after he will have to be obeyed in all Points Whereupon I said to the King That it was grievous to Us his Majesties Justices of the Bench to be severed from our Brethren but more grievous that they differed from us in Opinion without hearing one another especially since in what we have done in Sir VVilliam Chancys Case aud others the like concerning the Power of the High-Commissioners was done judicially in open Court upon argument at the Bar and Bench. And further I said to the King that when we the Justices of the Common-Pleas see the Commission newly reformed We will as to that which is of Right seek to satisfie the Kings expectation and so We departed c. Trin. 9 Jac. Regis Stockdale's Case in the Court of VVards The King by Letters Patents dated 9. April the ninth year of his Reign did Grant to VVilliam Stockdale in these words Such and so many of the Debts Duties Arrearages and Sums of Money being of Record in our Court of Exchequer Court of Wards Dutchy-Court or within any Court or Courts c. in any year or several years from the last year of the Reign of H. 8. to the 13th year of Our Dear Sister as shall amount to the sum of 1000 l. To have takâ— levy c. the said Debts c. to the said VVilliam Stockdale his Executors c. And in this Case divers Points were resolved 1. That the said Grant of the King is void for â—he incertainty for thereby no Debt in certain can pass As if the King have an 100 Acres of Land in D. and he Grants to a Man 20 Acres of the Lands in D. without describing them by the Rent Occupation or Name c. this Grant is void 2. When the Patentee Claims by force of this word Arreragia It was resolved clearly That he shall not have Arrearages of Rents Reliefs and mean Rates of Lands c. in the Court of Wards c. if the Patent go not further But the Proviso in the end of the Patent viz. Provided that the said VVilliam Stockdale shall take no benefit by any means of Arrearages of any Rents c. untill Sir Patrick Murrey and others be paid the sum of 1000 l. c. hath well explained what Arrearages the King intended But clearly mean Rates are not within the words for they are the Profits of Demesne Land Trin. 9 Jacobi Regis Divers men playing at Bowles at great Marlow in Kent two of them fell out and a third man who had not any quarrel in revenge of his Friend struck the other with a Bowl of which he dyed This was held Manslaughter because it happened upon a suddain motion In the same Term a special Verdict divers years past found in the County of Hertford which was That two Boyes fighting together one was seratched in the Face and bled very much at the Nose and so he run three quarters of a Mile to his Father who seeing his Son so abused he took a Cudgel and run to the place where the other Boy was and stroke him upon the Head upon which he dyed And this was held but Man-slaughter for the Passion of the Father was continued and no time to judge it in Law Malice prepense And this Case was moved ad mensam c. Mich. 9 Jac. Regis Memorandum upon Thursday in this Term a High Commission in Causes Ecclesiastical was published in the Archbishops great Chamber at Lambeth in which I with the Chief Justice Chief Baron Justice VVilliams Justice Crooke Baron Altham and Baron Bromly were named Commâ—ssioners among all the Lord of the Council divers Bishops Attorney and Sollicitor and divers Deans and Doctors in the Cannon and Civil Laws And I was commanded to sit by force of the said Commission which I refused for three Causes 1. Because neither I nor any of my Brethren of the Common-Pleas were acquainted with it 2. Because I did not know what was contained in the new Commission and no Judge can execute any Commission with a good Conscience without knowledg for Tantum sibi est permissum quantum est Commissum 3. That there was not any necessity of my sitting who understood nothing of it so long as the other Judges whose advise had been had in this new Commission were there 4. That I have endeavoured to inform my self of it by a Copy from the Rolls but it was not enrolled 5. None can sit by force of any Commission till he hath taken the Oath of Supremacy according to 1 Eliz. and if I may hear the Commission read and have a Copy to advise upon I will either sit or shew cause to the contrary The Lord Treasurer perswaded me to siâ— but I utterly refused it and the rest seemed to incline Then the Commission was openly read containing divers Points against the Laws and Statutes of England At hearing of which all the Judges rejoyced they sate not by it Then the Archbishop made an Oration during all which as the reading of the Commission I stood and would not sit and so by my Example did the rest of the Judges And so the Archbishop appointed the great Chamber at Lambeth in Winter and the Hall in Summer and every Thursday in the Term at two a clock Afnoon and in the Forenoon one Sermon Mich. 9 Jacob. Regis In this Term the Issue in an Information upon the 〈◊〉 2 H. 6. 15. was tryed at the Bar and upon Evidencâ— upon the words of the Statute which are That evâ—â—y person that sets or fastens in the Thames any Nets or Enâ—iâ—â—s called Trincks or any other Nâ—ts to any â—â—sts c. to stand continually day and night forfeits to â—he King 100 s. for every time c. And the Defendants having set and fastned Nets called Trincks in the Thames c. to Boats day and night as long as the Tide served and nor continually The Question was If this was within the Statute and it was clearly Resolved That it was within the Statute for the Nets called Trinks cannot stand longer than the Tyde serve and for this the word continually shall be taken for so long as they may stand to take Fish for lex non intendit aliquid impossibile Mich. 9 Jacob. Regis Shulters Case in the Star-Chamber The Case was such John Shulter of Wisbich of the age of 115 years
THE RESOLUTIONS Of the JVDGES upon the several STATUTES Of Bankrupts As also The like Resolutions Upon 13 Eliz. and 27 Eliz Touching Fraudulent CONVEYANCES By T. B. Esq LONDON Printed for T. Twyford and are to be sold by Hen. Twyford and other Booksellers 1670. Pasch 4. Jacobi Regis Ford and Sheldon's Case upon Information in the Exchequer for the King THomas Ford a known Recusant bâ—fore the 23 of Eliz. for money lent to Sheldon some before and some after the said 23 Eliz. took Recognizance in the Names of others and also a Rent-charge to them in Fee with a Clause of Redemption by Deed the Condition of the Recognizance being for performance of the Covenanss in the Deeds and afterward was made the Statute of the 28 Eliz. which was That as often as any Failer was made in the payment of 20 l. a Month that so often the Queen by Process out of the Exchequer might take and enjoy all the Goods and two Parts c. And after the said Act Ford lent the several Sums of Money and took the Securities as aforesaid amounting in all to 21000 l. which being to Ford's use were all forfeited Afterwards 41 Eliz. was Convict of Recusancy and did not pay the 20 l. a Month If the King should have the Bâ—nefit of these Recognizances and Securities was the Qâ—estion 1. Upon Debate it was objected by Ford's Councel That the Recognizances had not been Forfeited though they had been made in Ford's Name the Statute speaking onely of Goods which doth not include Debts As if the King grant all the Goods of J. S. coming to him by Attainder the Patentee shall not have Debts And a Penal Law shall not be extended by Equity Obj. 2. That three Recognizances are not within the Intention of the Act being Savers of the Realty and acknowledged to perform Covenants as to the Rent-charge Ob. 3. No Fraud was in the Case And then no Statute being in this Case the Common-Law gives no benefit to the King As if Cestuy que use had been Attaint of Treason the Use being but a Trust could not be forfeited to the King And it not a Use A multo fortiori a meer Trust Ob. 4. What Forfeiture accrues to the King in this Case must be by force of the words Goods in the Statute which cannot be Ford having no Goods but a meer Trust Also one Recognizance was taken in the Names of others before the Stature and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use Resolved 1. By all the Barons and Popham Chief Justice of England and divers other Justices that Personal Actions are as well included within this Word Goods in an Act of Parliament as Goods in Possession But because by Law things in Action cannot be granted over therefore by General Grant without special words can never pass And where the Statute saith Shall take seize and enjoy all the Goods and two parts c. the King may well enjoy a Debt due to a Recusant and by Process out of the Exchequer Levy it and so take and seize refers to Goods and two Parts of Lands in Possession Resolved 2. That it was Originally for the Loan of Money and both the Recognizance and Annuity were to secure the said Money And Recognizances fotfeited are but Chattels Personal Resolved 3. There was Covin apparent for he being a Recusant always as aforesaid and so chargeable to the King his taking the Recognizances in the Name of others shall be Construed with an Intent to prevent the King of his Forfeiture And so shall all Recognizances taken in others Names after the said Act be presumed to be taken As to Ceâ—â—uy que use who neither hath Jus in Re nor Jus ad Rem true it is he cannot Forfeit but an Act done to defraud the King of his lawful Duty the King shall not be barred thereof per obliquum if the Act was made de directo And for this If a man outlawed buy Goods in the Names of others the King shall have them notwithstanding So if an Accountant to the King purchase Lands in others Names yet the King shall sâ—ze those Lands for Money due to him And this appears by Walter Cherton's Case Trin. 24. Ed. 3. Rot. 4. in Scaccario for Reâ— fallere non vult falli autem non potest See another President Trin. 24. Ed. 3. Pot. 11. Resolved 4. Noâ—resert Whether the Duty do accâ—ue to the King by the Common-Law or by the Statute And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use And though Ford was not Convict till the 41 of Eliz. that is not material for he was subject to a Forfeiture before Pasch 4 Jac. In Chancery 27 Junii 29 Eliz. The Case between the Lord St. John of Bletso and the Dean of Gloucester The Lord St. John brought a Quare Impedit in the Common-Pleas against the Defendant for the Church of Penmark in the County of Glamorgan which Suit was staid by Aid prayer and the Record removed into the Chancery The Plaintiff moved for a Procedendo and upon Oyer of Cause before Sir Thomas Bromley Lord Chancellor in the presence of Sir Gilbert Gerrard Master of he Rolls and Shute and Windham Justices and Popham Attorney and Egerton Sollicitor of the Queen the Plaintifâ— shewed a Gift in Tail of the said Advowson made to his Anc stor in 18 R. 2. and a Verdict for the same in 12 H. 8. and a presentation by his Grandfather to the said Church of a Clerk that was admitted instituted inducted and had possession divers years with other matters to prove the Plaintiffs Tâ—tle yet for that the Defendant and those from whom he claimes had time out of mind possessed the said Parsonage as Impropriate And for that it will be a dangerous President to all Owners of Impropriations It was Resolved by the Court of Chancery by the advice of the Justices and Councel Learned by the Queen aforesaid That no Procedendo in loquela be granted Vide Ridley fol. 153 154. the beginning of Appropriations and Annuities to be discharged of Tythes Vide ibid. 155. That the Saxon Kings appropriated eight Churches to the Monastery of Croyland Trin. 37 Eliz. In the Exchequer Chamber Crimes and Smith The Abbot of Sulby held the Parsonage of Iubbenhâ—m in Leicestershire to his proper use which as impropriate came to H. 8. by the dissolution of Monasteries 31 H. 8. who in the 37th year of his Reign granted it in Fee-Farm under which Grant the Plaintiff claimed The Defendant obtained a Presentation of the Queen and to destroy the said Impropriation shewed the Original Instrument of it 22 Ed. 4. with Condition in it That a Vicaridge should be competently endowed which was alledged never to be done But for that the Rectory was reputed and taken to be appropriate and a Vicar presented admitted instituted and inducted as a Vicar
more Prohibitions had been granted of late than in many years before To this a Sixfold Answer was made 1. That they had exceedingly multiplyed the number of Causes they in five Counties and three Towns having at one sitting 450 Causes at Hearing whereas the Chancery that extends into all England and Wales had in Easter Term but 95. and in Trinity Term but 72. to be heard So that it is no wonder it in such a Multiplication of Causes the number of Prohibitions be increased 2. Besides the Multiplication they have innovated and taken upon them to deal in Causes which we know never any President could and we think never any President and Councel did usurp As first Suits upon Penal Laws As between Hâ—rison and Thurston upon the 39 of Eliz. of Tillage 2. In Hâ—rtley's Case after Indictment of Forcible Entry and Restitution according to the Statute upon English Bill dispossessed by the President 3. After a Recovery in Ejectione Firmae and Habere facias possessionem out of our Court they upon English Bill dispossessed the Plaintiff this was Hart's Case So in other Cases as between Jacksoâ— and Philips Stanton and Child and Binns and Collâ—t 4. They admit English Bills in nature of Writs of Errour Formedons and other reall Actions 5. They wiâ—l â—dmit no Plea of Outlary in disability of the Plaintiff 6. They usually granted Injunctions to stay the Common-Law which is utterly against Law and som times to stay Suits in Chancery and in the Exchâ—quer Chambâ—r for which in respect as well of the Multiplications of Suits as Innovations of others it may very well be that more Prohibitions and Habeas Corpus have been granted of late than in time past And yet there hath been more granted and more antient than is supposed For which see Mich. 7 Eliz. Rot. 31. and Mich. 7. and 8 Eliz. in libro de Habeas Corpus Also Trin. 20 Eliz. ibid. 3. The Judges never grant either Prohibition or Habeas Corpus but upon Motion or Complaint by the Party grieved and therefore as the Subject hath more cause to complain there must needs be more Prohibitions and Habeas Corpus than heretofore 4. The Proceedings there are by absolute Power and their Decrees uncontrollable and finall more than in a Judgment in a Writ of Right which makes them presume too much upon their Authority 5. These Suits grow more prejudicial to the King than ever because thereby the King loseth his Fines c. 6. Remedy for the time past if the Common-Bench erre Writ of Errour lies in Banco Regis if the Kings-Bench erre a Writ of Errour lyes in the Upper-House of Parliament 7. For the time to come 1. That the Instructions be inrolled in Chancery that the Subject may see and know their Jurisdiction 2. That the Presidents and Councels have some Councel Learned in the Court to inform us judicially of their true Jurisdiction and we will give them a day to shew cause that Justice may be done on both sides and if we erre the Law hath provided a Remedy by Writ of Errour And we are sworn to do Justice to all according to the Laws Upon this Answer of the Judges the Lords of the Councel upon Conference among themselves gave by the Earl of Salisbury then Lord Treasurer this Resolution 1. That the Instructions should be Recorded as far as they concerned Criminal Causes or Causes between Party and Party But as to State-Matters not to be published 2. That both Councels should be within the Survey of Westminster Hall viz. the Courts of Westminster 3. The Motion was well allowed that the Presidents and Councels should have Councel learned in every Court that day might be given c. And concerning the remotenesse of the place the Counties of Cornwall and Devon are more remote then York And this was the end of that Dayes Work Case of Heresy Note 2 Ma. title Heresy Brook per omnes Justiciarios et Baker et Hare The Archbishop in his Province in the Convocation may and doth use to convict Heresy by the Common-Law and then to put them convicted into Lay-hands and then by the Writ de Heretico comburendo they were burnt but because it was troublesome to call a Convocation It was ordained by the Statute 2 H. 4. cap. 15. That every Bishop in his Diocesse might convict Hereticks And if the Sheriff was present he might deliver such to be burnt without the Writ aforesaid but if the Sheriff were absent or he were â—o be burnt in another County then the said Writ ought to be had And that the Common-Law was such Vide lib. intra title Indictment pl. 11. Who are Hereticks See 11 H. 7. Book of Entries fol. 319. See Doct. Stud. lib. 2. cap. 29. Cosin 48. 2. 1 2 P. M. cap. 6. Also 3 F. N. B. fol. 269. And the Writ in the Register proves this directly 4 Bracton l. 3. cap. 9. fol. 123 124. And true it is That every Ordinary may convent any Heretick or Schismatick before him pro salute animae and may degrade him and enjoyn him penance according to Ecclesiastical Law but upon such Conviction the Party shall not be burnt Nota The makers of the Act of 1 Eliz. were in doubt what shall be deemed Heresy or Schisme c. and therefore the Statute of 10 Eliz. provides That nothing shall be deemed Heresy but what had been so determined by one of the four general Councels the Word of God or Parliament See Fox in Ed. 6. and Britton 5 Ed. 1. lib. 1. cap. 17. and with this agrees the Statute 2 H. 5. cap. 7. 23 H. 7. 9. 25 H. 8. cap. 14. or that the proceedings in the Commencement and end was altered by the Statute 25 H. 8. then came the Satute 1 Ed. 6. cap. 12. and that repealed 5 R. 2. 2 H. 5. 26 H. 8. and the 2 H. 4. and by general words all Statutes concerning matter of Religion then the 1 2 P. M. c. 6. revived the 2 H. 4. by which the 25 H. 8. lost its force but by the Act 1 2 P. M. cap. 8. expresly repealing 21 H. 8. 23 H. 8. 24 H. 8. 27 H. 8. but the 25 H. 8. cap. 14. was not repâ—aled being repealed before by 〈◊〉 1 Ed. 6. yet in the end of that long Act there is a general Clause sufficient of it self to repeal the Act 25 H. 8. cap. 14. without more then the 1 Eliz. cap. 1. repeals the 1 and 2 P. and M. is repealed except some Branches and in the same Act it is enacted That all other Statutes repealed by the said Act of Repeal 1 and 2 P. and M. and not in this Act specially revived shall remain repealed But the 25 H. 8. cap. 14. was not particularly revived and therefore remains repealed And after the said Statute 1 Eliz. repeals the Act 1 and 2 P. and M. of reviving of three Acts for punishment of Heresyes so that now at
hath well observed Vide Dyer 298. vide le Stat. 27 Eliz. Pasch 9 Jacobi Regis Sir William Chancâ—ys Case In this Term Sir William Chancy having the priviledg of this Court and being a Prisoner in the Fleet was brought to â—he Bar by Habeas Corpus by the Guardian of the Fleet who returned That the said Sir William was committed to the Fleet by Warrant from the High-Commissioners in Ecclesiastical Causes which Warrant follows in these words viz. These are to Will and Require you in his Majesties Name by Vertue of his Hâ—gh-Commission c. to Us and others directed c. That herewithal you take and receive into your Custody the Body of Sir William Chancy Knight whom we will that you keep c. untill further Order c. letting you know the cause of his Committment to be for that being at the Suit of his Lady convented bâ—fore c. for Adultery and expelling her from his Company and Co-habiting with another Woman without allowing her any competent Maintenance and by his own Confession convict thereof he was thereupon enjoyned to allow his Wife a competent Maintenance c. and to perform such Submission and other order for his Adultery as by Law should be enjoyned him which he expresly refused to do in contempt c. Given at London 19 Martii 1611. subscribed Henry Mountague George Overall Thomas Morton Zach. Paâ—field And it was moved by Nicholas Serjeant a Councel with Sir William that this return was insufficient 1. Because Adultery ought to be punished by the Ordinary and not by the High-Commâ—ssioners on which the Offender is remediless and can have no appeal Quod fuit concessum per Coke Warberton and Foster but Walmesly doubted of Adultery 2. That by force of the Act of the 1. of Eliz. the High-Commissioners cannot imprison Sir William for Adultery nor for denying Alimony to his Wife And Doderidge the Kings Sâ—rjeant of Council on the other side did not defend the Imprisonment to be lawful And it was clearly agreed by Coke Walmesly Warberton and Foster That the Commissioners had not power to imprison in this Case And Walmâ—sly said That though they have used this Power for twenty years without any exception yet when it comes before them judicially they ought to Judge according to Law and upon this Sir William Chancy was Bailed And it was resolved per totam Curiam That when it appears upon the Return that the Imprisonment is not lawful the Court may discharge him of Imprisonment Also it was Resolved That the Return was insufficient in form 1. It is not shewn when the Adultery was committed 2. He was enjoyned to allow his Wife a competent Maintenance without any certainty and to perform such submission c. as by Law shall be enjoyned which is all infuturo and uncertain Vide in my Treatise at large the Reasons and Causes why the High-Commissioners may sue and imprison Vide Pasch 42 Eliz. Rot. 1209. Pasch 9 Jacobi Regis Empringham's Case In this Term a Case was moved in Star-Chamber upon a Bill exhibited by the Attorney-General against Robert Empringham Vice-Admiral in the County of York Marmaduke Ketthewell one of the Marshals of the Admiralty and Thomas Haâ—rison an Informer in the same Court for Oppression and Extortion in Fining and Imprisoning divers of the Kings Subjects in the said County which no Judge of the Admiralty can justifie because it is not a Court of Record but they proceed according to the Civil Law and upon their Sentence no Writ of Error lyeth but an Appeal Also the said Empringham hath caused divers to be cited to appear before him for things done in the Body of the County which were determinable by the Common Law and not before the Admiralty whose authority is limited to the High Sea And for these and other Oppressions they were fined and imprisoned and sentenced beside to make Restitution c. Trin. 9 Jacobi Regis Memorandum That upon the Thursday before this Term all the Justices of England by the Kings Command were assembled in the Council-Chamber at Whitehall where was Abbot Archbishop of Canterbury and with him two Bishops and divers Civillians the Archbishop complained of Prohibitions out of the Common-Pleas and delivery of Persons by Haheas Corpus but chiefly of Sir William Chancy I defended our proceedings according to my Treatise thereof which I delivered before the High-Commissioners And after great dispute between the Archbishop and Me at last he said He had a Point not yet touched upon in my Treatise which would give satisfaction to the Lords and Us also and upon which he would rely And that the Clause of Restitution and Annexation viz. And that all such Jurisdictions c. Spiritual and Ecclesiastical as by any power Spiritual hath heretofore or hereafter lawfully may be used c. for visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all Errors Heresies Schismes c. shâ—ll for ever by authority of this present Parliament be united and annexed to the Imperial Crown of this Realm And it was said That H. 8. and Ed. 6. did give Power by their Commissions to divers to impose Mulcts c. in Ecclesiasticall Causes c. and upon this he concludes That this having been used before 1 Eliz. this is given to Queen Eliz. and her Successors Also inasmuch as by 2 H. 4. and 2 H. 7. the Jurisdiction Ecclesiastical may Fine and Imprison in particular Causes therefore Power to Fine and Imprison in all Ecclesiastical Causes is given to the King And this he said he uttered that it might be answered 1. To which I for a time gave this Answer That it was good for the Weal-publick that the Judges at the Common-Law should interpret the Statutes within this Realm 2. It was said by me That before the Statute of 1 Eliz. no Ecclesiastical Judge may impose a Fine or Imprison for any Ecclesiastical or Spiritual Offence unless there be Authority by Act of Parliament And this was so affirmed by all the Justices Vide my Book of Presidents the Commission at large to Cromwel to be Vicegerent Afterwards in this very Term the Privy-Council sent for the Justices of the Common-Pleas only and there the Reasons of the said Resolution were largely debated and strong Opposition made hy Egerton Lord Chancellor but the Justices of the Common-Pleas remained constant in their Resolution Afterward the Council sent for the chief Justice of the Kings Bench Justice Williams Justice Crook Chief Baron Taâ—field Snig Althan and Bromly who were not acquainted with the Reasons of the said Rule of the Common-Pleas nor knew why they came before the Council And hearing the Lord Chancellor affirm That the High-Commissioners have alwayes by the Act 1 Eliz. imposed Fines and Imprisonments for exorbitant Crimes without any Conference with us or among then selves or hearing the matter debated were of Opinion with us And after at another day this
holden That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there in honour of the Deceased the same Reason of a Coat-Armour c. And the Chief Justice said the Lady might have a good Action during her Life in the Case aforesaid because she caused the things to he set up there and after her death the Heir shall have his Action they being in the nature of Hire-looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanâ—us sol 13. Coâ—cl 29. Actioâ— dat si aliquis arma in aliquo loco posita deleat aut abrasit c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter Term 10 Jacob. it was Resolved in the Star-Chamber in the Case between Hussâ—y and Katharine Leyton that if a man have a house in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such Prescription the Ordinary shall dispose of common and vulgar Seats Earl of Shrewes buryes Case Sir Humphry Winch Sir James Ley Sir Anthony St. Leger and Sir James Hullesâ—on certified the Lords of the Councel by Command from them by Letters dated 28. Martii 1612. of the Claim of Gilbert Earl of Shrewesbury to the Earldome of Waterford and Barony of Dungarvan in Ireland as followeth King Henry the Sixth by Letters-Patents in the 20th year of his Reign did Grant to his Cosin John Earl of Shrewsbury in consideration of his Loyal Services in the City and County of Waterford pro se c. ipsum in Comitem Waterford una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus creamus habendum to the said Earl and his Heirs-males of his Body and further did Grant the Castles Lordships c. of Dungarvan to the said Earl and the Heirs-males of his Body To hold c. of the King and his Heirs by Homage and Fealty and by the Service of being his Majesties Seneschal in Ireland After in the Parliament called Des Absentees holden at Dublin in Ireland 10. Maii 28 H. 8. It was enacted by reason of the long absence of George Earl of Shrewesbury out of the said Realm That the King his Heirs c. shall enjoy in right of his Crown of England all Honors Mannors Castles c. and all and singular possessions c. as well Spiritual as Temporal which the said George Earl of Shrewesbury and VVaterford or any other Persons had to his Use c. King Henry the 8th by his Letters Patents dated 29th of his Reign reciting the said Statute Nos praemissa Considerantes c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto c. in the County of Nottingham and the Lordship of Rotheram in the County of York the Abbeys of Chestersteld Shirbrook and Glossaâ—dale in Derbyshire with divers other Lands c. to be holden in Capite And the Questions were as followeth 1. Whether by the long absence of the Earl of Shrewsbury out of Ireland the Title of the Honor be lost and forfeited he being a Peer of both Realms and refiding here in England 2. Whether by the Act Des absentâ—es 28 H. 8. the Title of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land c. Afterwards by other Letters Patents dated 27th of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case and to certifie their Opinions which Case being argued by Councel learned in the Law in behalf the said Earl and they having taken great advisement It was unanimously Resolved by them all as followeth 1. As to the fiâ—st Resolved That since it does not appear what defence was requisite and that the Consideration Executory was not found by Office to be broken in that Point the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford 2. As to the second It was Resolved That the said Act 28 H. 8. Des Absenteâ—s does not onely take away the Possessions given him at his Creation but also the Dignity it self for though one may have a Dignity without Possession yet is it very inconvenient that Dignity should be cloathed with Poverty and so it was resolved in the Lord Ogles Case in Edw. 6. Reign as the Baron of Burleigh 35 Elâ—z did report The cause of Degradation of George Nevil Duke of Bedford is worth observation which was done by Act of Parliament 16 June 17 Ed. 4. which Act reciting the making the said George Duke sets forth the cause of his Degradation in these words And for so much as it is openly known that the said George hath not or by Inheritance may have any livelyhood to support the said Name Estate and Dignity c. Therefore the King by Advice of his Lords Spiritual and Temporal and Commons c. Enacteth c. That from henceforth the same Creation of the said Duke and all Names of Dignity given to the said George or to John Nevil his Father be void and of none effect Wherein are to be observed 1. That though the Duke had not Possessions to maintain his Dignity yet it could not be taken from him but by Act of Parliament 2. Great Inconveniencies follow where there is great State and Dignity and no means to maintain it 3. It is good reason to take away such Dignity by Act of Parliament and then the Act shall be expounded to take away such Inconvenience And though the Earl of Shrewsbury be of great Honour Vertue and Possessions in England yet it was not the Intention of the Act to continue him Earl in Ireland when his Possessions there were taken away And where it was objected that the general words Honours and Hereditaments are explained and qualified by the said Relative subsequent which the said George or any to his use hath Now in regard no man can be seized of the said Digniâ—y therefore the Act doth not extend to it 'T is answered that is to be understood Reddendo singula singulis and these words which the said G. E. hath are sufficient to pass the Dignity and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Reports sol 33 and 34. Hill 2 Jacob. Regis Jurisdiction of the Court of Common-Pleas In the last Term by the King's Commands the Justices of the Kings Bench and Barons of the Exchequer were assembled before the Lord Chancellor Ellesmere at York-house to deliver their Opinion Whether there was any Authority in our Books that the Justices of the Common-Bench may grant Prohibitions or whether every Plea ought to be pending
in the Court for such cause And the King would know their Opinions The Judges took time till this Term and then Fleming Chief Justice Tanfield Chief Baron Saig Altham Crook Bromley and Dodderidge Yelverton and Williams Justices being dead since last Term did deliver their Opinions to the Lord Chancellor That the Presidents of each Court are sufficient Warrant for their Proceedings in the same Court and for a long time and in many Successions of Reverend Judges Prohibitions upon Information without any other Plea pending have been granted Issues tryed Verdicts and Judgments given upon Demurrer All which being in force they unanimously agreed to give no Opinion against the Jurisdiction of the Common-Bench in this Case See my Treatise of the Jurisdiction of the Common-Bench in this Point Hill 10 Jac. Regis Parliament in Ireland The Lords of the Councel did write to the two Chief Justices and Chief Baron to look into Poynings Act made 10 H. 7. in Ireland and to consider thereof and certifie what shall be fit to be held concerning the same their Letter bore date Ultimo Janii 1612. Upon which in this Term the said Chief Justices Chief Baron Attorney and Sollicitor General were assembled two days at Sergeants Inne And they considered not onely of the said Act 10 H. 7. c. 4. called Poynings Act but also of an Act made in Ireland 3 4 P. M. c. 4. Entituled An Act declaring how Poynings Act shall be expounded and taken for by the said Act 10 H. 7. it is provided That no Parliament be hereafter holden in Ireland but when the Kings Lieutenant and Councell there first certifie the King under the Great Seal of that Land the causes c. and such causes c. affirmed by the King and his Councel to be good and expedient for the Land and his Licence thereupon c. A Parliament to be holden after the former before c. And any Parliament holden contrary c. to be void in Law Upon which Act divers Doubts were conceived 1. And first Whether the said Act 10 H. 7. does extend to the Successors of H. 7. the Act speaking onely of the King generally and not his Successors 2. If the Queen Mary were within the word King and both were held affirmatively for the word King being spoke indefinitely does extend in Law to all his Successors And this is so expounded by the Act 3 and 4 P. and M. viz. That the said Act 10 H. 7. shall extend to the King and Queens Majesty her Heirs and Successors Secondly where Povnings Act sayes the Kings Lieutenant and Councel the said Act 3 and 4 P. and M. explains it to extend to all other Officers the King shall Depute by what Name soever 3. The greatest Doubt was upon these words of Poynings Act And such Causes Considerations and Acts affirmed by the King and his Councel to be good and expedient for the Land c. Whether the King may make any change or alteration of the Causes c. which shall be transmitted hither from the Lieutenant and Councel of Ireland for that it is not affirmative but correction and alteration of them and therefore it was necessary to explain that the Act 3 and 4 P. and M. was in these words Either for the passing of the said Acts and in such form and tenor as they should be sent into England or else for the change or alteration of them or any part of them 4. Another Doubt arose from these words That dâ—ne a Parliament to be had If at the same Parl. other Acts which have been affirmed or altered here may be Enacted there which is explained by the said last Act in these words viz. For passing and agreeing upon such Acts and no others as shall be returned c. 5. A fifth Doubt arose from the same words Whether the Lieutenant and Councel of Ireland after the Parliament begun and pendente Parliamento may upon debate there transmit any other Considerations c. the which said Act 3 and 4 P. and M. is by express words explained they may And it was unanimously Resolved That the Causes Considerations and Acts transmitted hither under the Great Seal of Ireland ought to be kept in the Chancery in England and not be remanded 2. Iâ— they be affirmed they must be transcribed under the Great Seâ—l and so returned into Ireland 3. If the Acts transmitted hither be in any part altered or changed here the Act so altered must forthwith be returned under the Great Seal of England for the Transcript under the Irish Great Seal to remain in Chancery here shall not be amended but the Amendment shall be under the English Great Seal See 10 H. 6. 8. which begins Mich. 18 H. 6. Rot. 46. coram Rege how a Parliament was holden there before Poynings Act. See also another Act made in Ireland the same 10 H. 7. c. 22. vide R. 3. 12. Hibernia habet Parliamenta faciunt leges nostra statuta non ligant â—os quia non mittunt milites ad Parliamentum sed personae coâ—um sunt subjecti Regis sicut inhabitantâ—s Calinae Gascogniae Guienae But question is made of this in some of our Books vid. 20 H. 6. 8. 32 H 6 25. 1 H. 7. 3. 8 H. 7. 10. 8 R. 2. Precess 204. 13 Ed. 2. Tit. Bastard 11 H. 47. 7 Ed. 4. 27. Plow Comment 368. 13 Eliz. Dyer 35. 2 Eliz. Dyer 366. Calvins Case 7th of my Reports 226. 14 Ed. 3. 184. A Prâ—bend in England made Bishop of Dublin in Ireland his Prebendary is voâ—d See the Sâ—atute of Ireland c. That the Acts of Parliament made in England since the 10 H. 7. do not hind them in Ireland but all made in England before the 10 H. 7. by the Act made in Ireland 10 H. 7. c. 22. do bind them in Ireland Note Cambden King at Arms told me that some held if a Baron dyes having Issue divers Daughters the King confer the Dignity to him who marryes any of them as hath been done in divers Cases viz. In the case of the Lord Cromwel who had Issue divers Daughters And the King did confer the Dignity upon Burchier who marryed the youngest Daughter and he was called Cromwel and so in other Cases Note by Linwood it appears by the Canons Ecclesiastick none may exercise Ecclesiastick Jurisdiction unless he be within the Orders of the Church because none may pronounce Excommunication but a Spiritual Person But now by the 37 H. 8. c. 17. a Doctor of Law or Register though a Lay-man may execute Ecclesiastical Jurisdiction No Ecclesiastical may cite a Church-Warden to the Court but so as he may return home the same day Also the Canons limit how many Courts Ex Officio they may have in a year Mich. 11 Jac. Regis Note If a man give to one of his Children a certain sum in his life and after dyes though this is not given as a Child 's full Portion yet it
charged and therewith agrees 10 Ed. 3. 28. b. and the Star 22 H. 8. cap. 5. was but an affirmance of the Common-Law in that Point He that hath Toll of Men or Cattel passing over a Bridge ought to repair the same when no other is bound by Law to do it for he hath Toll to that purpose Et quisentit commodam sentire debet onus and with this agrees 14 Ed. 3. Bar. 276. Also a man may be bound to repair a Bridge ratione tenurae of certain Land but a particular person cannot be bound by Prescription for if he have not profit by the same his Ancestors Act shall not bind him But an Abbot or Corporation may be charged by Prescription and may bind their Successors Vide 21 E. 4. 28. 27 Ed. 3. 8. 22 Ass 8. 5 H. 7. 3. Yeaâ— they shall be compelled if time out of mind they have repaired it though of Alms and therewith agrees 10 E. 3. 28. So of a High-way all the Country ought to repair it but some may be bound particularly as in the Case of Bridges As he who hath Land adjoyning ought to scour and cleanse the Ditches next to the way to his Land and therewith agrees the Book 8 H. 7. 5. So of a common River all who have Passage by it ought to scour and cleanse it for it is as a common Street as it is said 17 Assi and 37 Ass 10. Pasch 7 Jacobi Regis Sir William Reades and Booth's Case In the great Case of Forgery in the Star-Chamber between Sir William Read Plaintiff and Roger Booth and Cuthbert Booth and others Defendants the Case was thus Roger Booth 38 Eliz. was Convict in that Court of publishing a Writing under Seal forged in Sir Thomas Greshams Name of a Rent charge of 100 l. out of all his Lands c. to one Markham for 99 years dated 21 year of Queen Elizabeth's Reign knowing it to be forged And afterwards the said Sir William Read exhibited the said Bill against the said Boothes and others for forging another Writing under Seal dated the 20th of Elizabeth in the said Sir Thomas Gresham's Name purporting a Deed of Feoffment of all his Lands except certain to Sir Rowland Heyward and Edward Hoogen and their Heirs in effect to the use of Markham the younger and his Heirs and for publishing the same knowing it to be forged was the Bill exhibited And upon hearing this Cause this Term these Doubts were moved upon the Star 1 Eliz. 1. If one who is Convict of publication of a Deed of eoffment or 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 Aâ—t which Doubt ariseth upon these words est-soons committed again any of the said Offences 2. The second Doubt was If a man commit two Forgeries one in 37 Eliz. the other in 38 Eliz. and he is first convicted of the last if he may now be impeached for the first 3. When Roger Booth was Convict in 38 Eliz. and after is charged with a new Forgery in 37 Eliz. If the Witnesses moving in truth that it was forged after the 〈◊〉 Conviction if the Star-Chamber hath Jurisdiction of 〈◊〉 4. When Cuthbert Booth who was never Convict 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 the Forgery is alleadged before it was done 1 2. To the first and second Doubts It was resolved by the two Chief Justices and Chief Baron That if one be Convict of Forgery or publishing any Writing concerning Free-hold c. within the first Branch or concerning Interest or Term of Years c. in 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 forge a Writing concerning an Interest for Years within the second Branch and be convicted and after he forgeth a Charter of Feoffment within the first Branch et e converso that is Felony by express words of the Act. But if one forge a Writing in 37 Eliz and after he forge another in 38 Eliz. yet it is not Felony though he forge many Writings one after another for the Forgery c. which is Felony by the Act ought to be after Conviction or Condemnation of a former Writing 3. 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 to the Court Jurisdiction But if it appear that the Forgery or Publication was after the Sentence then the Court shall surcease 4. As to the last Point It was Resolved That the time of the Forgery is not material if it be committed before the exhibiting the Bill But if the date of such Writing supposed to be Forged had been mistaken there the Defendant could not be condemned of a Deed of another Date Pasch 7 Jac. Regis The Case of Sewers The Case was There was a Cawsey or Milstank of Stone in the River of Dee and in the City of Chester which Cawsey before the Reign of King Edward the first was Erected for the necessary maintenance of certain Mills 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 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 Letters of the Lords of the Privy-Councel to the Chief Justices and Chief Baron who upon hearing of Councel Learned at divers dayes and good Consideration had of all Statutes of Sewers and Conferences among themselves It was Resolved as followeth 1. That the Stat. of Magna Chart. cap. 23. Quod omnâ—s Kidelli deponantur c. extended onely to Kidels viz. Open Wears for taking Fish But the first Stat. that extended to pulling down or abating any Mills Mill-Stanks or Cawseyes was 25 Ed. 3. cap. 4. which appointed onely such to be pulled down as were Erected in the Reign of King Edward the first or after But by 1 H. 4. cap. 12. upon complaint in Parliament of great damages by inhansing Mills Mill-stanks c. made before Edward the first 's Reign that Act appoints them to be surveyed and such as were found to be much inhansed to be corrected None of which Acts extend to the Case in question for that Cawsey was erected before Edw. 1. and never inhanced since the Erection And the 12 H. 4. c. 7. confirms all the said Acts. And by the 23 H. 8. c. 5. none of the said Statutes are repealed as to the Case in question for thereby the Form and Effect of the Commission of Sewers is appointed and power given to the Commissioners to survey Walls c. Fences Cawseys