Iudg of the Prerogative Dr. James Dr. Martin and divers other Doctors of the Civil and Canon Law came attending upon them to the King to Whitehall the Thursday Friday and Saturday after Easter-Term in the Councel-Chamber where the Cheif Iustice and I my self Daniel Iudg of the Common-Pleas and Williams Iudg of the Kings-Bench by the command of the King attended also where the King being assisted with his Privy Councel all sitting at the Councel-Table spake as a most gracious good and excellent Soveraign to this effect As I would not suffer any novelty or Innovations in my Courts of Iustice Ecclesiastical and Temporal so I will not have any of the Laws which have had judicial allowances in the times of the Kings of England before him to be forgotten but to be put in execution And for as much as upon the contentions between the Ecclesiastical and Temporal Courts great trouble inconvenience and loss may arise to the subjects of both parts namely when the controversie ariseth upon the jurisdiction of my Courts of ordinary Iustice and because I am the head of Iustice immediately under God and knowing what hurt may grow to my Subjects of both sides when no private case but when the Iurisdictions of my Courts are drawn in question which in effect concerneth all my Subjects I thought that it stood with the Office of a King which God hath committed to me to hear the controversies between the Bishops and other of his Clergy and the Iudges of the Laws of England and to take Order that for the good and quiet of his Subjects that the one do not encroach upon the other but that every of them hold themselves within their natural and local jurisdiction without encroachment or usurpation the one upon the other And he said that the onely question then to be disputed was If a Parson or a Vicar of a Parish sueth one of his Parish in the Spiritual Court for Tythes in kinde or Lay-fee and the Defendant alledgeth a custom or prescription De modo Decâ—mandi if that custom or prescription De modo Decimandi shall be tryed and determined before the Iudg Ecclesiastical where the Suit is begun or a Prohibition lyeth to try the same by the common Law And the King directed that we who were Iudges should declare the reasons and causes of our proceedings and that he would hear the authorities in the Law which we had to warrant our proceedings in granting of Prohibition in cases of Modo Decimandi But the Archbishop of Canterbury kneeled before the King and desired him that he would hear him and others who are provided to speak in the case for the good of the Church of England and the Archbishop himself inveighed much against two things 1. That a Modus Decimandi should be tryed by a Iury because that they themselves claim more or less modum Decimandi so as in effect they were Tryors in their own cause or in the like cases 2. He inveighed much the precipitate and hasty Tryals by Iuries and after him Doctor Bennet Iudg of the Prerogative Court made a large Invection against Prohibitions in Causis Ecclesiasticis and that both Iurisdictions as well Ecclesiastical as Temporal were derived from the King and all that which he spake out of the Book which Dr. Ridley hath lately published I omit as impertinent and he made five Reasons why they should try Modum Decimandi And the first and principal Reason was out of the Register fo 58. quia non est consonans rationi quod cognitio accessarii in Curia Christianitatis impediatur ubi cognitio Causae principalis ad forum Ecclesiasticum noscitur pertinere And the principal cause is Right of Tythes and the Plea of Modo Decimandi sounds in satisfaction of Tythes and therefore the Conusance of the original cause scil the Right of Tythes appertaining to them the Conusance of the bar of Tythes which he said was but the accessary and as it were dependant upon it appertained also to them And whereas it is said in the Bishop of VVinchesters Case in the second part of my Reports and 8 E. 4. 14. that they would not accept of any Plea in discharge of Tythes in the Spiritual Court he said that they would allow such Pleas in the Spiritual Court and commonly had allowed them and therefore he said that that was the Mystery of iniquity founded upon a false and feigned foundation and humbly desired the reformation of that Error for they would allow Modum Decimandi being duly proved before them 2. There was great inconveniency that Lay-men should be Tryers of their own Customs if a Modus Decimandi should be tryed by Iurors for they shall be upon the matter Iurors in their own cause 3. That the custom of Modo Decimandi is of Ecclesiastical Iurisdiction and Conusance for it is a manner of Tything and all manner of Tything belongs to Ecclesiastical Iurisdiction and therefore he said that the Iudges in their Answer to certain Objections made by the Archbishop of Canterbury have confessed that suit may be had in Spiritual Courts pro modo Decimandi and therefore the same is of Ecclesiastical Conusance and by consequence it shall be tryed before the Ecclesiastical Iudges for if the Right of Tythes be of Ecclesiastical Conusance and the satisfaction also for them of the same Iurisdiction the same shall be tryed in the Ecclesiastical Court 4. In the Prohibitions of Modus Decimandi averment is taken That although the Plaintiff in the Prohibition offereth to prove Modum Decimandi the Ecclesiastical Court doth refuse to allow of it which was confessed to be a good cause of Prohibition But he said they would allow the Plea De Modo Decimandi in the Spiritual Court and therefore cessante causa cessabit effectus and no Prohibition shall lie in the Case 5. He said that he can shew many consultations granted in the cause De Modo Decimandi and a Consultation is of greater force then a Prohibition for Consultation as the word imports is made with the Court with consultation and deliveration And Bacon Solicitor-General being as it is said assigned with the Clergy by the King argued before the King and in effect said less then Doctor Bennet said before but he vouched 1 R. 3. 4. the Opinion of Hussey when the Original ought to begin in the Spiritual Court and afterwards a thing cometh in issue which is tryable in our Law yet it shall be tryed by their Law As if a man sueth for a Horse devised to him and the Defendant saith that the Devisor gave to him the said Horse the same shall be tryed there And the Register 57 and 58. If a man be condemned in Expences in the Spiritual Court for laying violent hands upon a Clark and afterwards the Defendant pays the costs and gets an Acquittance and yet the Plaintiff sueth him against his Acquittance for the Costs and he obtains a Prohibition for that Acquittances and Deeds
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
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
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
or Peculiar other then in such particular Cases only as are expresly excepted and reserved in and by a Statute Anno 23 H. 8. cap. 9. And the King by Letters Patents under the great Seal hath given his royall Assent to this Canon 1. Jac. at the Synod at London Vi. Linwood de excusationibus 200. Lit. m. 5. pag. 2. L. 2. amongst others from time to time to be observed fulfilled and kept as well by the Archbishop of Canterbury the Bishops and their Successors and the rest of the whole Clergy of the Province of Canterbury in their severall Callings Offices Functions Ministeries Degrees and Administrations as also by all and every Dean of the Arches and other Iudge of the said Archbishops Courts Guardians of Spiritualties Chancellors c. So the same is also expresly confirmed under the great Seal And although the Archbishoprick of Canterbury was then void yet the Guardian of the Spiritualties was there and the Archbishop of Canterbury that now is and then Bishop of London was by Letters Patents President of the said Councell in the place of the Archbishop then deceased And the King gave his royall Assent to the same and the said Canon is of as full force as if the said late Archbishop of Canterbury had been then alive And whereas it is said in the Preamble of the Act In the Arches Audience and other high Courts Archbishops were Legati nati and had Legatine power which is now abolished vi Linwood of the Archbishop of this Realm It is to be known That the Archbishops of this Realm before that Act had power Legatine from the Pope by which they pretended to have not only supereminent Authority over all but concurrent Authority with every Ordinary in his Dioces not as Archbishop of Canterbury c. but by his power and authority Legatine For Sunt tria genera Legatorum 1. quidam de latere Dom. Papae mittuntur ut Cardinales quos appellant fratres 2. Alii sunt Dativi non de latere qui simpliciter in Legatione mittantur c. 3. Sunt Nati sive Nativi qui suarum Ecclesiarum praetextu legatione fingantur Tales sunt quatuor scil Archepiscopus Cant. Eboracensis Remanensis Pisanis So as before that Act the Archbishop of Canterbury was Legatus Natus and by force of his authority Legatine usurped against the Canons upon all the Ordinaries in his Precinct and by colour thereof claimed currant authority with them which although they held in the Courts of the Archbishop the same was remedied by the Act of 23 H. 8. cap. 9. and all that which he usurped before was not as he was Archbishop for as to that he was restrained by the Canons but as he was Legatus Natus which authority is now taken away and abolished utterly Lastly If the said Act of 23 H. 8. cap. 9. should not be so expounded Vi lib. Arch. Cant. p. 39. that the Arch-Bishop of Cant. hath a Peculiar in many Dioces Then the Act which is principally made as it appeareth by the Preamble against the Courts of the Archbishopricks should be as to them illusory For if the Bishop of Canterbury in respect of his exempt Peculiar in London may draw to him all the Dioces in London So might he at Newington which is a Peculiar in Winchester Dioces draw to him the whole Dioces of Winchester And at Totteredge neer Bornet the whole Dioces of Lincoln and so of the like 3. It was resolved That when any Iudges are prohibited by any Act of Parliament that if they do proceed against the Act there a Prohibition lieth As against the Steward and Marshall of the Houshold Quod seneschallus Mariscallus non teneant Placit de libero tenem de Debito de Conventione c. So the Statute of Articuli super chartas cap. 3. Register fol. 185. inter Brevia super statuta So against the Constable of the Castle of Dover Quod non tangit Custodiam Castri So to Iustices of Assise upon the statute Quod Inquisitiones quae sunt magni exactionis non Capiantur in Patria Also to the Treasurer and Barons of the Exchequer upon the statute Vi. Pasc 42 Eliz Rot. 139. Rudds case a Prohibition for citing out of the Dioces Tr. 44 Eliz. Rot. 1073. the like in an information upon the Statute against Zachary Babington Vi. If any one in the Spirituall Court appeals contrary to the Statute of 24 H. 8. cap. 12. although the matter be meer Spiritual a Prohibition lyeth So upon the Statute of 2 H 5. cap. 2. De Articul super Cartas Cap. 4. The statute of Rutland Cap. ultimo Quod communia Placit non teneantur in Scaccario All which and many more you may see in the Register inter Brevia super Statuta See F. N. B. 45 46. c. 17 H. 6. 54. vi 13 E. 3. to Prohibition A Prohibition to the Chancellor and diversity of Courts in the Title of Chancery So against all Ecclesiasticall Iudges upon the statute of 2 H. 5. cap. 3. If the Iudges there will not give or deliver to the party a Copy of the Libell although that the matter be meer Ecclesiasticall and therewith agreeth 4 E. 4. 37. and F. N. B. 43. c. So the Case upon the Statute of 2 H. 5. cap. 15. If the Ecclesiasticall Iudges in case of Heresie and other matters of meer Spiritualty do not proceed according to the intention of the same statute as it appeareth by the President in 5 E. 4. Keysons Case 10 H. 7. 17. See the opinion of Paston 9 H. 6. 3. A man excommunicated by the Bishop of London for a Crime done in another Dioces shall not be grieved thereby so as the Common Law takes notice of the Canons in such case as Coram non Judice And although the statute of 23 H. 8. inflicts a penalty yet a Prohibition lyeth for the inflicting of the penalty doth not take away the Prohibition of the Law and therefore Cap. which inflicts punishment if the Sheriff doth not put his Name unto the Return yet the same is Error if he doth not put to his Name see 35 H. 6. 6. when any thing is prohibited by a Statute if the party be convicted he shall be fined for the contempt to the Law and 19 H. 6. 4. agrees in Maintenance And if every person should be put to his Action upon the Statute the same See 2 H. 4. 10 by Haukford and so affirmed by the Court when one who hath not authority holdeth plea in spirituall things whereof the Jurisdiction doth not belong to him yet no consultation shall be grāted because a consultation shall not be granted to one that hath not power c. should be cause of Suits and veration and the shortest and more easy is to have a Prohibition See the Statute of 21 H. 8. cap. 6. of Mortuaries by which it is enacted That no Parson Vicar Curat c. demand
any Mortuary but in such manner as is mentioned in the Act upon pain of forfeiture of so much in value as they take more then is limited by the Act and forty shillings over to the party grieved Yet it appeareth by Doctor and Student lib. 2. cap. 55. fol. 105. That if the Parson c. sueth for Mortuaries otherwise then the Act appointeth that a Prohibition lyeth yet there is a Penalty added which is an authority expresly in the Point And the Case at Bar is a more strong Case and that for three reasons 1. It was made in affirmance of the Canon Law 2. It was made for the ease of the People and Subjects and for the maintenance of the Iurisdiction of the Ordinary so as the Subjects have benefit by the Act and therefore although that the King may dispence with the penalty yet the Subject greived shall have a Prohibition And the Rule of the Court was Fiat Prohibitio Curiae Cantuar. de Arcub Inter partes praedict per Curiam And Sherly and Harris Iunior Serjeants at Law were of Councell in the Case III. Mich. 6 Jacobi Regis Edwards Case THe high Commissioners in Causes Ecclesiasticall objected divers High Commission Articles in English against Thomas Edwards dwelling in the City of Executer 1. That Mr. John Walton hath been many yeares trained up in Learning in the Vniversity of Oxford and there worthily admitted to severall degrees of Schools and deservedly took upon him the degree of Doctor of Physick 2. That he was a Reverend and well practised man in the Art of Physick 3. That you the said Thomas Edwards are no Graduate 4. That you knowing the Premisses notwithstanding you the said Edwards c. of purpose to disgrace the said Dr. Walton and to blemish his Reputation Learning and Skill with infamy and reproach did against the Rules of Charity write and send to the said Mr. Doctor Walton a lewd and ungoodly and uncharitable Letter and therein tared him of want of Civility and Honesty and want of Skill and Iudgment in his Art and Profession c. And you so far exceeded in your immoderate and uncivill Letter that you told him therein in plaine termes He may be crowned for an Asse as if he had no manner of skil in his Profession and were altogether unworthily admitted to the said Degrees and therein you purposely and advisedly taxed the whole Vniversity of rashnesse and indiscretion for admitting him to that Degree without sufficiency and desert 5. And further to disgrace the said Mr. Doctor Walton in the said Vniversity did publish a Copy of the said Letter to Sir William Courtney and others and in your Letter was contained Sipsilam lichenen mentegram Take that for your Inheritance and thank God you had a good Father And did not you thereby covertly mean and imply That the Father of the said Dr. Walton being late Bishop of Exeter and a Reverend Prelate of this Land was subject to the Diseases of the French Pox and Leprosie to the dislike of the Dignity and Calling of Bishops 6. That in another Letter you sent to Mr. Doctor Maders Doctor of Physick you named Mr. Doctor Walton and made a Horn in your Letter And we require you upon your Oath to set down whether you meant not that they were both Cuckoulds and what other meaning you had 7. You knowing that Dr. Walton was one of the high Commission in the Dioces of Exeter and having obtained a Sentence against him in the Star-Chamber for contriving and publishing of a Libell did triumphingly say That you had gotten on the hipp a Commissioner for Causes Ecclesiasticall in the Dioces of Exeter which you did to vilifie and disgrace him and in him the whole Commission Ecclesiasticall in those parts Lastly That after the Letter missive sent unto you you said arrogantly That you cared not for any thing that this Court can do unto you nor for their censure for that you can remove this matter at your pleasure And this Term it was moved to have a Prohibition in this Case And the matter was well argued And at last it was resolved by Coke chief Iustice Warberton Daniel and Foster Iustices That the first six Articles were meer Temporall concerning Doctor Walton in his Profession of Physick and so touched the Temporall person and a temporall matter and in truth It is in the nature of an Action upon See Book of Entries 444. 447. Non est Juri consentanium quod quis super iis quo rum cognitio ad nos pertinet in Curia Christianitatis trahatur in placita vi Stat. Circumspecte agatis An. 13. E. 1. Episcopus teneat plicita in Curia Christianitatis de his quae sunt mere Spiritualia Et vi Linwood f. 70. Lit. m. dicuntur mere Spiritualia quia non habent mixturam Temporalem vi 22 E. 4. l. Consultat vi 22 E. 4 the Abbot of Sion case the Case for Scandall in his Profession of Physick And yet the Commissioners themselves do proceed in the same Ex Officio And it was resolved that as for them a Prohibition doth lye for divers causes 1. Because that the matter and persons are Temporall 2. Secondly Because it is for Defamation which if any such shall be for the same it ought to begin before the Ordinary because it is not such an Enormous Offence which is to be determined by the high Commissioners And for the same reason Suit doth not lye before them for calling the Doctor Cuckould as it was objected in the seventh Article And it was said that the high Commissioners ought to incur the danger of Premunire 2. It was resolved That the Ecclesiasticall Iudge cannot examine any man upon his Oath upon the intention and thought of his Heart for Cogitationis penam nemo emoret And in cases where a man is to be examined upon his Oath he ought to be examined upon Acts or words and not of the intention and thought of his heart and if every man should be examined upon his Oath what opinion he holdeth concerning any point of Religion he is not bound to answer the same for in time of danger Quis modo tutus erit if every one should be examined of his thoughts And so long as a man doth not offend neither in act nor in word any Law established there is no reason that he should be examined upon his thought or Cogitation For as it hath been said in the Proverb Thought is free And therefore for the sixth and seventh Articles they were resolved as well for the matter as for the form in offering to examine the Defendant upon his Oath of his intention and meaning were such to which the Defendant was not to be compelled to answer Ergo It was resolved that as to the Article he might justifie the same because as it appeareth upon his own shewing that the Doctor was sentenced in the Star-Chamber Also the Libell is matter meer Temporall and if it
delivered to the party without difficulty if the Ecclesiastical Iudg when the cause which depends before him is meer Ecclesiastical denyeth the Libel a Prohibition lieth because that he doth against the Statute and yet no Prohibition by any express words is given by the Statute And upon the same Statute the Case was in 4 E. 4. 37. Pierce Peckam took Letters of Administration of the Goods of Rose Brown of the Bishop of London and afterwards T. T. sued to Thomas Archbishop of Canterbury That because the said Rose Brown had Goods within his Diocess he prayed Letters of Administration to be committed to him upon which the Bishop granted him Letters of Administration and afterwards T. T. libelled in the Spiritual Court of the Archbishop in the Arches against Pierce Peckam to whom the Bishop of London had committed Letters of Administration to repeal the same and Pierce Peckam according to the said Statute prayed a Copy of the Libel exhibited against him and could not have it and thereupon he sued a Prohibition and upon that an Attachment And there Catesby Serjeant moved the Court that a Prohibition did not lie for two causes 1. That the Statute gives that the Libel shall be delivered but doth not say that the Plea in the Spiritual Court shall surcease by Prohibition 2. The Statute is not intended of matter meer spiritual as that case is to try the Prerogative and the Liberty of the Archbishop of Canterbury and the Bishop of London in committing of Administrations And there Danby Chief Iustice If you will not deliver the Libel according to the Statute you do wrong which wrong is a temporal matter and punishable at the Common Law and therefore in this case the party shall have a special Prohibition out of this Court reciting the matter and the Statute aforesaid commanding them to surcease until he had the Copy of the Libel delivered unto him which case is a stronger case then the case at the Bar for that Statute is in the Affirmative and the said Act of 2 E. 6. cap. 13. is in the Negative scil That no Suit shall be for any Tythes of any Land in kinde where there is Modus Decimandi for that is the effect of the said Act as to that point And always after the said Act in every Term in the whole Reigns of King E. 6. Queen Mary and Queen Elizabeth until this day Prohibitions have been granted in Causa Modi Decimandi and Iudgments given upon many of them and all the same without question made to the contrary And accordingly all the Iudges resolved in 7 E. 6. Dyer 79. Et contemporanea expositio est optima fortissima in lege a communi observantia non est recedendum minime mutanda sunt quae certam habuerunt interpretationem And as to the first Objection That the Plea of Modus Decimandi is but accessary unto the Right of Tythes it was resolved that the same was of no force for three causes 1. In this case admitting that there is Modus Decimandi then by the Custom and by the Act of 2 E. 6. and the other Acts the Tythes in kinde are extinct and discharged for one and the same Land cannot be subject to two manner of Tythes but the Modus Decimandi is all the Tythe with which the Land is chargeable As if a Horse or other thing valuable be given in satisfaction of the Duty the Duty is extinct and gone and it shall be intended that the Modus Decimandi began at the first by real composition by which the Lands were discharged of the Tythes and a yearly sum in satisfaction of them assigned to the Parson c. So as in this case there is neither Principal nor Accessary but an Identity of the same thing 2. The Statute of 2 E. 6. being a Prohibition in it self and that in the Negative If the Ecclesiastical Iudg doth against it a Prohibition lieth as it appeareth clearly before 3. Although that the Rule be general yet it appeareth by the Register it self that a Modus Decimandi is out of it for there is a Prohibition in Causa Modi Decimandi when Lands are given in satisfaction of the Tythes As to the second Objection it was answered and resolved That that was from or out of the Question for status Quaestionis non est deliberativus sed judicialis what was fit and convenient but what the Law is and yet it was said It shall be more inconvenient to have an Ecclesiastical Iudg who is not sworn to do Iustice to give sentence in a case between a man of the Clergy and a Lay-man then for twelve men sworn to give their Verdict upon hearing of Witnesses viva voce before an indifferent Iudg who is sworn to do Right and Iustice to both parties But convenient or inconvenient is not the Question Also they have in the Spiritual Court such infinite exceptions to Witnesses that it is at the Will of the Iudg with which party he shall give his sentence As to the third Objection it was answered and resolved First That satisfactio pecuniaria of it self is Temporal But for as much as the Parson hath not remedy pro Modo Decimandi at the Common Law the Parson by force of the Acts cited before might sue pro Modo Decimandi in the Ecclesiastical Court but that doth not prove That if he sueth for Tythes in kinde which are utterly extinct and the Land discharged of them that upon the Plea de Modo Decimandi that a Prohibition should not lie for that without all question appeareth by all that which before hath been said that a Prohibition doth lie See also 12 H. 7. 24. b. Where the original cause is Spiritual and they proceed upon a Temporal a Prohibition lieth See 39 E. 3. 22 E. 4. Consultation That Right of Tythes which is meerly Ecclesiastical yet if the question ariseth of the limits of a Parish a Prohibition lieth and this case of the limits of a Parish was granted by the Lord Chancellor and not denyed by the other side As to the Objection That an Averment is taken of the refusal of the Plea de Modo Decimandi it was answered and resolved That the same is of no force for divers causes 1. It is onely to inforce the contempt 2. If the Spiritual Court ought to have the Tryal de Modo Decimandi then the refusal of acceptance of such a Plea should give cause of Appeal and not of Prohibition as if an Excommunication Divorce Heresie Simony c. be pleaded there and the Plea refused the same gives no cause of Prohibition as if they deny any Plea meer spiritual Appeal and no Prohibition lieth 3. From the begining of the Law no Issue was ever taken upon the refusal of the plea in Causa Modi Decimandi nor any Consultation ever granted to them because they did not refuse but allowed the plea. 4. The refusal is no part of the matter issuable or material in
of Iustice And this was the end of these three days consultations And note That Dr. Bennet in his discourse inveighed much against the opinion in 8 E. 4. 14. and in my Reports in Wrights Case That the Ecclesiastical Iudg would not allow a Modus Decimandi and said That that was the mystery of iniquity and that they would allow it And the King asked for what cause it was so said in the said Books To which I answered that it appeareth in Linwood who was Dean of the Arches and of profound knowledg in the Canon and Civil Law and who wrote in the Reign of King Henry the sixth a little before the said Case in 8 E. 4. in his title de Decimis cap. Quoniam propter c. fo 139. b. Quod Decimae solvantur c. absque ulla diminutione and in the gloss it is said Quod Consuetudo de non Decimando aut de non bene Decimando non valet And that being written by a great Canonist of England was the cause of the said saying in 8 E. 4. that they would not allow the said plea de Modo Decimandi for always the Modus Decimandi is lesse in value then the Tithes in specie and then the same is against their Canon Quod decimae solvantur absque diminutione quod consuetudo de non plene Decimando non valet And it seemed to the King that that Book was a good Cause for them in the time of King Edward the fourth to say as they had said but I said That I did not relie upon that but upon the grounds aforesaid scil The common Law Statute-Laws and the continuall and infinite judgements and judiciall proceedings and that if any Canon or Constitution be against the same such Canon and Constitution c. is void by the Statute of 25. H. 8. Cap. 19. which see and note For all Canons Constitutions c. against the Prerogative of the King the common Laws Statutes or Customs of the Realm are void Lastly the King said That the high Commission ought not to meddle with any thing but that which is enormious and exorbitant and cannot permit the ordinary Proces of the Ecclesiasticall Law and which the same Law cannot punish And that was the cause of the institution of the same Commission and therefore although every offence ex vi termini is enormious yet in the Statute it is to be intended of such an offence is extra omnem normam as Heresie Schisme Incest and the like great offences For the King said That it was not reason that the high Commission should have conusance of common offences but to leave them to Ordinaries scil because that the party cannot have any appeal in case the high Commisson shall determine of it And the King thought that two high Commissions for either Province one should be sufficient for all England and no more XV. Mich. 39 and 40 Eliz. in the Kings Bench. Bedell and Shermans Case MIch 39 and 40 Eliz. which is entred Mich. 40 Eliz. in the com-Pleas Rot. 699 Cantabr the Case was this Robert Bedel Gent. and Sarah his wife Farmors of the Rectory of Litlington in the County of Cambridge brought an Action of Debt against John Sherman in the custody of the Marshall of the Marshalsey and demanded 550 l. And declared that the Master and Fellows of Clare-Hall in Cambridge were seised of the said Rectory in fee in right of the said Colledge and in June 10. 29 Eliz. by Indenture demised to Christopher Phesant the said Rectorie for 21 years rendering 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute c. which Rent was the ancient Rent who entred into the said Rectory and was possessed and assigned all his interest thereof to one Matthew Batâ— who made his last Will and Testament and made Sarah his wife his Executrix and died Sarah proved the Will and entred and was thereof possessed as Executrix and took to husband the said Robert Bedel by force whereof they in the Right of the said Sarah entred and were possessed thereof and that the Defendant was then Tenant and seised for his life of 300 acres of arable Lands in Litlington aforesaid which ought to pay Tithes to the Rector of Litlington and in anno 38 Eliz. the Defendant grano seminavit 200 acres parcel c. And that the Tithes of the same did amount to 150 l. and that the Defendant did not divide nor set forth the same from the 9 parts but took and carried them away against the form and effect of the Statute of 2 E. 6 c. And the Defendant pleaded Nihil debet and the Iury found that the Defendant did owe 55 l. and to the residue they found Nihil debet c. and in arrest of Iudgement divers matters were moved 1. That grano seminata is too generall and incertain but it ought to be expressed with what kinde of corn the same was sowed 2. It was moved If the Parson ought to have the treble value the forfeiture being by expresse words limited to none by the Act or that the same did belong to the Queen 3. If the same did belong to the Parson if he ought to sue for the same in the Ecclesiasticall Court or in the Kings Temporall Court 4. If the husband and wife should joyn in the Action or the husband alone should have the Action and upon solemn argunent at the Barre and at the Bench the Iudgement was affirmed XVI Trinity Term 7 Jocob in the Court of Wards John Bailies Case IT was found by Writ of Diem clausit extremum That the said John Bailie was seised of a Messuage or Tenement and of and in the fourth part of one acre of land late parcel of the Demesne lands of the Mannor of Newton in the County of Hereford in his Demesne as of fee and found the other points of the Writ and it was holden by the two chief Iustices and the chief Barons 1. That Messuagium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain land or any thing which is holden 2. It was holden that is was void for the whole because that no Town is mentioned in the Office where the Messuage or Tenement or the fourth part of the acre lieth and from the Visne of the Mannor upon a Traverse none can come because it is not affirmed by by the Office that they are parcel of the Mannor but Nuper parcel of the Mannor which implieth that now they are not and it was holden by them that no Melius inquirendum shall issue forth because that the whole Office is incertain and void XVII Trinity 7 Jacobi Regis in the Court of Wards THe Attorney of the Court of Wards moved the two chief Iustices and chief Baron in this Case That a man seised of lands in fee-simple covenants for the advancement of his son and of his name and blood and posterity that he will stand seised
within the body of the County but they do not restrain the execution of the same Court to be served upon the Land for it may be that the party hath not any thing upon the Sea and then it is reason to have it upon the Land and if such a Defendant have nothing wherewithall to make agreement they of the Court have power to take the body of such a Defendant upon the Land in execution In which case these points were observed 1. Although that the Court of Admiralty is not a Court of Record because they proceed there according to the Civil Law see Brook Error 77. acc yet by custom of the Court they may amerce the Defendant for his default by their discretion 2. That they may make execution for the same of the goods of the Defendant in corpore Comitatus and if he hath not goods then they may arrest the body of the Defendant within the body of the County But the great Question between them was If a man committeth See this point resolved 8 Eli. Dyer per curiam which is omitted out of the printed Book Piracy upon the Sea and one knowing thereof receiveth and comforteth the Defendant within the body of the County if the Admiral and other the Commissioners by force of the Act of 28 H. 8. cap. 16. may proceed by Indictment and conviction against the Receiver and Abettor in as much as the offence of the Accessary hath his begining within the body of the County And it was resolved by them that such a Receiver and Abettor by the common Law could not be indicted or convicted because that the common Law cannot take conusance of the original Offence because that is done out of the Iurisdiction of the common Law and by consequence where the common Law cannot punish the principal the same shall not punish any one as accessary to such a principal And therefore Coke chief Iustice reported to them a Case which was in Suffolk in anno 28 Eliz. where Butler and others upon the Sea next to the Town of Laystaft in Suffolk robbed divers of the Queens subjects and spoyled them of their goods which goods they brought into Norfolk and there they were apprehended and there brought before me then a Iustice of the Peace within the same County whom I examined and in the end they confessed a cruel and barbarous Piracy and that those goods which then they had with them were part of the goods which they had robbed from the Queens subjects upon the High Sea and I was of opinion that in that case it could not be Felony punishable by the common Law because that the original act scil the taking of them was not any offence whereof the common Law taketh knowledg and by consequence the bringing of them into a County could not make the same Felony punishable by our Law and it is not like where one stealeth goods in one County and brings them into another there he may be indicted of Felony in any of the Counties because that the original act was Felony whereof the common Law taketh knowledg and yet notwithstanding I committed them to the Gaol until the coming of the Iustices of Assises And at the next Assises the Opinion of Wray chief Iustice and Periam Iustices of Assise was That for as much as the common Law doth not take notice of the original Offence the bringing of the goods stoln upon the Sea into a County did not make the same punishable at the common Law and thereupon they were committed to Sir Robert Southwell then Vice-Admiral of the said Counties and this in effect agrees with Lacies case which see in my Reports cited in Binghams case in the 2 Reports 93. and in Constables case C. 5. Reports 107. See the Piracy was Felony the Book of 40 Assis 25. by Schard where a Master or Captain of a Ship together with some Englishmen robbed the Kings sujects upon the High Seas where he saith that it was Felony in the Norman Captain and Treason in the Englishmen his companions and the reason of the said case was because the Normans were not then under the Obedience and Allegiance of the King of England for King John lost Normandy and for that cause Piracy was but Felony in the Norman but in the English who were under the Obedience and Allegiance of the King of England the same was adjudged Treason which is to be understood of Pettit Treason which was High Treason before and therefore in that case the Pirates being apprehended the Norman Captain was hanged and the English men were hanged and drawn as appeareth by the same Book see Stamford 10. And some objected and were of opinion That Treasons done out of the Realm might have bin determined by the common Law but truly the same could not be punishable but onely by the Civil Law before the Admiral or by Act of Parliament as all Foreign Treasons and Felonies were by the common Law and therefore where it is declared by the Statute of 25 E. 3. That adherence to the Enemies of the King within England or elsewhere is Treason the same shall be tryed by the common Law but where it is done out of the Realm the Offendor shall not be attainted but by Parliament until the Statute of 35 H. 8. cap. 2. although that there are Opinions in some Books to the contrary see 5 R. 2. Quare impedit c. XXII Trinit 7 Jacobi Regis In the Common-Pleas Pettus and Godsalves Case IN a Fine levyed Trinity Term anno quinto of this King between John Pettus Esq Plaintiff and Roger Godsalve and others Deforceants of the Mannor of Castre with the appurtenances c. in the County of Norfolk where in the third proclamation upon the Foot of the same Fine the said proclamation is said to have been made in the sixth year of the King that now is which ought to have been anno quinto of the King and whereas upon the Foot of the same Fine the fourth proclamation is altogether left out because upon the view of the proclamations upon Dorsis upon Record not finis ejusdem Termini per Justiciarias remaining with the Chyrographer and the Book of the said Chyrography in which the said proclamations were first entered it appeareth that the said proclamations were rightly and duly made therefore it was adjudged that the Errors or defects aforesaid should be amended and made to agree as well with the proclamation upon Record of the said Fine and Entry of the said Book as with the other proclamations in Dorsis super pedes aliorum finium of the same Term and this was done upon the motion of Haughton Serjeant at Law XXIII Mich. 7 Jacobi In the Court of Wards Sammes Case JOhn Sammes being seised of Grany Mead by Copy of Court Roll of the Mannor of Tollesham the great of which Sir Thomas Beckingham c. and held the same of the King by Knights service in capite Sir Thomas by
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 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
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
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.