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
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
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
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
agrees with our Law And he goeth further In tempore vero Novae Legis etiam est determinatio partis solvendae authoritate Ecclesiae That is by their Canons Instituta secundum quandam humanitatem ut scilicet non minus populus Novae Legis Ministros novi Testamenti exuberat quam populus veteris Legis ministris veteris Testamenti exhibebat praesertim cum Ministri Novae Legis sunt Majores Dignitate ut probat Apostolus 2 Cor. 3. Sic ergo patet Quod ad solutionem Decimarum tenentur homines partim quidem ex jure naturali quantum ad hoc quod aliqua portio data est ministris Ecclesiae partim vero ex institutione Ecclesiae quantum ad determinationem Decimae Partis See Doctor and Student Lib. 2. cap. 55. fol. 164. That the tenth part is not due by the Law of God nor by the Law of Nature which he calleth the Law of Reason And he citeth John Gerson who was a Doctor of Divinity in a Treatise which he calleth Regulae morales scil Solutio Decimaram sacerdotibus est de jure Divino quatenus inde sustententur sed quo ad tam hanc vel illam assignare aut in alios redditus Commutare positivi juris est And afterwards Non vocatur Portio Curatis debita propterea Decimae eo quod est Decima pars imo est interdum vicesima aut tricesima And he holdeth That a Portion is due by the Law of Nature which is the Law of God but it appertaineth to the Law of Man to assign Hanc vel illam portionem as necessity requireth for their Sustenance And further he saith That Tithes may be exchanged into Lands Annuity or Rent which shall be sufficient for the Minister c. And there he saith That in Italy and in other the East Countries they pay no Tithes but a certain Portion according to the Custome c. And all this is true if not that Tithes be discharged or changed by one of the said five waies And forasmuch as it appeareth by themselves that the part or value was part of the Iudiciall Law certainly the same doth not bind any Christian Common-wealth but that the same may be altered by reason of time place or other consideration as it appeareth in all punishments inflicted by the Iudiciall Law they do not bind none for Felony is now punished by death c. which was not so by the Iudiciall Law c. Also forasmuch as now it is confessed that the tenth part is now due Ex institutione Ecclesiae that is to say By their Canons and it appeareth by the Statute of 25 H. 8. cap. 19. That all Canons c. made against the Prerogative of the King in his Laws Statutes or Customes of the Realm are void and that was but a Declaratory Law For no Statute or Custome of the Realm can be taken away or abrogated by any Canon c. made out or within the Realm but only by Act of Parliament and that well appeareth by 10 H. 7. f. 17. c. 18. That there is a Canon or Constitution That no Priest ought to be impleaded at the Common Law And there Brian saith That a grave Doctor of the Law once said unto him That Priests and Clarks might be sued at the Common Law well enough For he said that Rex est persona mixta and is Persona unita cum Sacerdotibus Statutis Ecclesiae In which case the King might maintain his Iurisdiction by prescription By which it appeareth that prescription doth prevail against expresse Canons or Constitutions and is not taken away by them which proves that the Statute of 25 H. 8. was but a Declaration of the ancient Law before And there is an expresse Prohibition in Numb 18. Nihil aliud possedebunt Decimarum oblatione contenti quas in usus eoram necessaria separavi Which was not part of the Morall Law or Law of Nature but part of the Iudiciall And therefore men of the holy Church at this day do possesse Houses Lands and Tenements and not Tithes only The second point which agrees with the Law at this day which was adjudged in the said Record of 25 H. 3. is That the limits and bounds of Towns and Parishes shall be tried by the Common Law and not in the Spirituall Court and in this the Law hath great reason for thereupon depends the Title of Inheritance of the Lay Fee whereof the Tithes were demanded for Fines and Recoveries are the common assurances of Lay Inheritances and if the Spirituall Court should try the bounds of Towns if they determine that my Land lyeth in another Town then is contained in my Fine Recovery or other assurance I shall be in danger to lose my Inheritance and therewith agreeth 39 E. 3. 29. 5 H. 5. 10. 32 E. 4. t. Consultation 3 E. 4. 12 19 H. 6. 20. 50 E. 3. 20. many other Presidents untill this day And note there is a Rule in Law that when the Right of tithes shall be tried in the Spiritual Court the Spirit Court hath jurisdiction therof that our Courts shall be ousted of the Iurisdiction 35 H. 6. 47. 38 H. 6. 21. 2 E 4. 15. 22 E. 4. 23. 38 E. 3. 36. 14 H 7. 17. 13 H. 2. Jurisd 19. but that is when debate is between Parson and Vicar or when all is in one Parish but when they are in severall Parishes then this Court shall not be ousted of the Iurisdiction See 12 H. 2. to Jurisdiction 17. 13 R. 2. ibid. 19. 7 H. 4. 34. 14 H. 4. 17. 38 E 3. 56. 42 E. 3. 12. And yet there is a Canon expresly against this which see in Linwood titulo de penis 55. And so fol. 227 228. amongst the Canons or Constitutions of Bonaface An. Dom. 1277. And the causes wherefore the Iudges of the Common Law would not permit the Ecclesiasticall Iudges to try Modum Decimandi being pleaded in their Court is because that if the Recompence which is to be given to the Parson in satisfaction of his tythes both not amount to the value of the Tythes in kinde they would overthrow Note this difference Although that the parties do admit the Jurisdiction of the Court yet upon the pleading if the right of the Tythes shall come in debate there this Court shall be ousted of the Jurisdiction the Spiritual Court shall have Jurisdiction But when the right of tythes cometh in debate and the Spiritual Court cannot have Jurisdiction or Conusance of it as where a Lay-man is Plaintiff as Farmor or Defendant as Servant of the Parson as a Lay man Farmor cannot sue there nor he who justifies as Servant cannot be sued in Trespass But if the Suit be between Parson and Vicar or Parson and Parson and other Spiritual persons if the Kings Court be ousted of the Jurisdiction after severance of the ninth part yet the Libel ought to be for substraction of Tythes for of that they have jurisdiction and
all the mean profits from the time of the erroneous Iudgment given until the Iudgment in the Writ of Error so as the Reversal hath a Retrospect to the first Iudgment as if no Iudgment had been given And therefore the Case in 4 H. 7. 10. b. the case is A. seised of Land in Fee was attainted of High Treason and the King granted the Land to B. and afterwards A. committed Trespass upon the Land and afterwards by Parliament A. was restored and the Attainder made voyd as if no Act had been and shall be as available and ample to A. as if no Attainder had been and afterwards B. bringeth Trespass for the Trespass Mesue and it was adjudged in 10 H. 7. fo 22. b. That the Action of Trespass was not maintainable because that the Attainder was disaffirmed and annulled ab initio And in 4 H. 7. 10. it is holden That after a Iudgment reversed in a Writ of Error he who recovered the Land by Erroneous Iudgment shall not have an Action of Trespass for a Trespass Mean which was said was all one with the principal case in 4 H. 7. 10. and divers other Cases were put upon the same ground It was secondly objected That the Wife could not have a Petition because there was not any Office by which her title of Dower was found scil her marriage the seisin of her Husband and death for it was said that although she was marryed yet if her Husband was not seised after the age that she is Dowable she shall not have Dower as if a man seised of Land in Fee taketh to Wife a woman of eight years and afterwards before her age of nine years the Husband alieneth the Lands in Fee and afterwards the woman attaineth to the age of nine years and the Husband dyeth it was said that the woman shall not be endowed And that the title of him who sueth by Petition ought to be found by Office appeareth by the Books in 11 H. 4. 52. 29 Ass 31. 30 Ass 28. 46 E. 3. bre 618. 9 H. 7. 24. c. As to the first Objection it was resolved That the Wife should be endowed and that the Fine with proclamations was not a bar unto her and yet it was resolved that the Act of 4 H. 7. cap. 24. shall bar a woman of her Dower by a Fine levyed by her Husband with proclamations if the woman doth not bring her Writ of Dower within five years after the death of her Husband as it was adjudged Hill 4 H. 8. Rot. 344. in the Common Pleas and 5 Eliz. Dyer 224. For by the Act the right and title of a Feme Covert is saved so that she take her action within 5. years after she become uncovert c. but it was resolved That the wife was not to be ayded by that saving for in respect of the said Attainder of her Husband of Treason she had not any right of Dower at the time of the death of her Husband nor can she after the death of her Husband bring an Action or prosecute an Action to recover her Dower according to the direction and saving of the said Act But it was resolved That the Wife was to be ayded by another former Saving in the same Act viz. And saving to all other persons scil who were not parties to the Fine such action right title claym and interest in or to the said Lands c. as shall first grow remain descend or come to them after the said Fine ingrossed and proclamations made by force of any Gift in Tail or by any other cause or matter had and made before the said Fine levied so that they take their Actions and pursue their right and Title according to the Law within five years next after such Action Right Claim Title or Interest to them accrued descended fallen or come c. And in this case the Action and right of Dower accrued to the wife after the reversall of the Attainder by reason of a Title of Record before the Fine by reason of the seisin in Fee had and the Marriage made before the Fine levied according to the â—â—â—ention and meaning of the said Act. And as to the said poâ—â—t of Relation It was resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some intent not For Relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same parties to advance a Right or Ut res magis valeat quam pereat But the Law will never make such a construction to advance a wrong which the Law abhorreth Or to defeat Collaterall Acts which are lawfull and principally if they do concern Strangers And this appeareth in this Case scil when an erroneous Iudgment is reversed by a Writ of Error For true it is as it hath been said That as unto the mean Profits the same shall have relation by construction of Law untill the time of the first Iudgment given and that is to favour Iustice and to advance the right of him who hath wrong by the erroneous Iudgment But if any stranger hath done a Trespasse upon the Land in the mean time he who recovereth after the Reversall shall have an Action of Trespasse against the Trespassors and if the Defendant pleadeth that there is no such Record the Plaintiff shall shew the speciall matter and shall maintain his Action so as unto the Trespassors who are wrong Doers the Law shall not make any construction by way of relation ab initio to excuse them for then the Law by a fiction and construction should do wrong to him who recovereth by the first Iudgment And for the better apprehending of the Law on this point it is to know That when any man recovers any possession or seisin of Land in any Action by erroneous Iudgment and afterwards the Iudgment is reversed as is said before and upon that the Plaintiff in the Writ of Error shall have a Writ of Restitution and that Writ recites the first recovery and the reversall of it in the Writ of Error is that the Plaintiff in the Writ of Error shall be restored to his possession and seisin Una cum exitibus thereof from the time of the Iudgment c. Tibi praecipimus quod eadem A. ad plenariam seisinam tenementorum praedict cum pertinentiis sine dilatione restitui facias per sacramentum proborum legalium hominum de Com. suo diligenter inquires ad quantum exitus proficua tenementorum illorum cum pertinentiis a tempore falsi Judicii praedict reddit usque ad Oct. Sanct. Mich. anno c. quo die judcium illud per praefat Justiciar nostros revocat fuit se attingunt juxta verum valorem eorundem eadem exitus proficua de terris catallis praedict B. in baliva tua fieri facias denarios inde praefato A. pro exitibus et proficuis
tenementorum per eundem B. dicto medio tempore percept sine dilatione haberi sacias Et qualiter hoc praeceptum nostrum fuerit execut constare facias c. in Octab. c. By which it appeareth That the Plaintiff in the Writ of Error shall have restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Error cannot have any remedy against any stranger but only against him who is party to the Writ of Error and therefore the words of the said Writ command the Sheriff to enquire of the Issues and Profits generally between the Reversal and the Iudgment with all which he who recovers shall be charged and as the Law chargeth him with all the mean profits so the Law gives to him remedy notwithstanding the Reversal against all Trespassors in the interim for otherwise the Law should make a construction by relation to discharge them who are wrong doers and to charge him who recovers with the whole who peradventure hath good right and who entereth by the Iudgment of the Law which peradventure is reversed for want of form or negligence or ignorance of a Clark And therefore as to that purpose the Iudgment shall not be reversed ab initio by a Fiction of Law but as the truth was the same stands in force until it was reversed and therefore the Plaintiff in the Writ of Error after the Reversal shall have any Action of Trespass for a Trespass mean because he shall recover all the mean profits against him who recovered nor he recovereth after shall be barred of his Action of Trespass for a Trespass mean by reason that his recovery is reversed because he shall answer for all the mean profits to the Plaintiff in the Writ of Error and therewith agreeth Brian Chief Iustice 4 H. 7. 12. a. Note Reader If you would understand the true sence and Iudgment of the Law it is needful for you to know the true Entries of Iudgments and the Entries of all proceedings in Law and the manner and the matter of Writs of Execution of such Iudgments See Butler and Bakers Case in the third part of my Reports good matter concerning Relations So as it was resolved in the Case at Bar Although that to some intent the Reversal hath relation yet to bar the Wife of her Dower by Fiction of Law by the Fine with proclamations and five years past after the death of her Husband when in truth she had not cause of Action nor any right or title so long as the Attainder stood in force should be to do wrong by a Fiction of Law and to bar the Wife who was a meer stranger and who had not any means to have any Relief until the Attainder was reversed And as unto the other point or Objection that the Demandant on the Petition ought to have an Office found for her it was resolved that it needed not in this case because that the title of Dower stood with the Queens title and affirmed it otherwise if the title of the Demandant in the Petition had disaffirmed the Queens title also in this Case the Queen was not entituled by any Office that the Wife should be driven to traverse it c. for then she ought to have had an Office to finde her title But in Case of Dower although that Office had been found for the Queen which doth not disaffirm the title of Dower in such case the Wife shall have her Petition without Office because that Dower is favored in Law she claiming but onely for term of life and affirming the title of the Queen See the Sadlers Case in the fourth part of my Reports And the case which was put on the other side was utterly denyed by the Court for it was resolved That if a man seised of Lands in Fee taketh a Wife of eight years of age and alieneth his Lands and afterwards the Wife attaineth to the age of nine years and afterwards the Husband dyeth that the Wife shall be endowed For although at the time of the alienation the Wife was not dowable yet for as much as the marriage and seisin in Fee was before the alienation and the title of Dower is not consummate until the death of her Husband so as now there was marriage seisin of Fee age of nine years during the Coverture and the death of the Husband for that cause she shall be endowed For it is not requisite that the marriage seisin and age concur together all at one time but it is sufficient if they happen during the Coverture So if a man seised of Lands in Fee take a Wife and afterwards she elopes from her Husband now she is barrable of her Dower if during the Elopement the Husband alieneth and after the Wife is reconciled the Wife shall be endowed So if a man hath issue by his Wife and the issue dyeth and afterwards Land descendeth to the Wife or the Wife purchaseth Lands in Fee and dyeth without any other issue the Husband for the issue which he had before the Discent or purchase shall be Tenant by the curtesie for it is sufficient if he have issue and that the Wife be seised during the Coverture although that it be at several times But if a man taketh an Alien to Wife and afterwards he alieneth his Lands and afterwards she is made a Denizen she shall not be endowed for she was absolutely disabled by the Law and by her birth not capable of Dower but her capacity and ability began onely by her Denization but in the other case there was not any incapacity or disability in the person but onely a temporary Bar until such age or reconcilement which being accomplished the temporary Bar ceaseth As if a man seised of Lands in Fee taketh a Wife and afterwards the Wife is attainted of Felony and afterwards the Husband alieneth and afterwards the Wife is pardoned and afterwards the Husband dyeth the Wife shall be endowed for by her birth she was not uncapable but was lawfully by her marriage and seisin in Fee entituled to have Dower and therefore when the impediment is removed she shall be endowed VIII Trinit 44 Eliz. In the Kings-Bench Sprat and Heals Case JOhn Sprat Libelled in the Spiritual Court against Walter Heal for Tythes Covin substraction of Tythes the Defendant in the Spiritual Court pleaded that he had divided the Tythes from the nine parts and then the Plaintiff made addition to the Libel in the nature of a Replication scil That the Defendant divided the Tythes from the nine parts quod praedict the Plaintiff non fatetur sed prorsus diffitetur yet presently after this pretended division in fraudem legis he took and carryed away the same Tythes and converted them to his own use and the Plaintiff thereupon obtained sentence in the Spiritual Court and to recover the treble value according to the Statute of 2 E. 6. cap. 13. And thereupon Heal made a
in the case of Modus Decimandi before and see Register fo 38. when Lands are given in satisfaction and discharge of Tythes 4. See the Statute of Circumspecte agatis Decimae debitae seu consuetae which proves that Tythes in kinde and a Modus by custom c. 5. 8 E. 4. 14. and Fitz. N. B. 41. g. A Prohibition lieth for Lands given in discharge of Tythes 28 E. 3. 97. a. There Suit was for Tythes and a Prohibition lieth and so abridged by the Book which of necessity ought to be upon matter De Modo Decimandi or discharge 7. 7 E. 6. 79. If Tythes are sold for mony by the sale the things spiritual are made temporal and so in the case De modo Decimandi 42 E. 3. 12. agrees 8. 22 E. 3. 2. Because an Appropriation is mixt with the Temporalty scil the Kings Letters Patents the same ought to be shewed how c. otherwise of that which is meer Temporal and so it is of real composition in which the Patron ought to joyn Vide 11 H. 4. 85. Composition by writing that the one shall have the Tythes and the other shall have mony the Suit shall be at the Common Law Secondly By Acts of Parliament 1. The said Act of Circumspecte agatis which giveth power to the Ecclesiastical Iudg to sue for Tythes due first in kinde or by custom i. e. Modus Decimandi so as by authority of that Act although that the yearly sum soundeth in the Temporalty which was payd by Custom in discharge of Tythes yet because the same cometh in the place of Tythes and by constitution the Tythes are changed into mony and the Parson hath not any remedy for the same which is the Modus Decimandi at the Common Law for that cause the Act is clear that the same was a doubt at the Common Law And the Statute of Articuli Cleri cap. 1. If corporal pennance be changed in poenam pecuniariam for that pain Suit lieth in the Spiritual Court For see Mich. 8 H. 3. Rot. 6. in Thesaur A Prohibition lieth pro eo quod Rector de Chesterton exigit de Hagone de Logis de certa portione pro Decimis Molendinarium so as it appeareth it was a doubt before the said Statute if Suit lay in the Spiritual Court de Modo Decimandi And by the Statute of 27 H. 8. cap. 20. it is provided and enacted That every of the subjects of this Realm according to the Ecclesiastical Laws of the Church and after the laudable usages and customs of the Parish c. shall yield and pay his Tythes Offerings and other duties and that for substraction of any of the said Tythes offerings or other duties the Parson c. may by due Proces of the Kings Ecclesiastical Laws convent the person offending before a competent Iudg having authority to hear and determine the Right of Tythes and also to compel him to yeild the Duties i. e. as well Modus Decimandi by laudable usage or Custom of the Parish as Tythes in kinde and with that in effect agrees the Statute of 32 H. 8. cap. 7. By the Statute of 2 E. 3. cap. 13. it is enacted That every of the Kings Subjects shall from henceforth truly and justly without fraud or guile divide c. and pay all manner of their predial Tythes in their proper kinde as they rise and happen in such manner and form as they have been of Right yielded and payd within forty years next before the making of this Act or of Right or Custom ought to have been payd And after in the same Act there is this clause and Proviso Provided always and be it enacted That no person shall be sued or otherwise compelled to yield give or pay any manner of Tythes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any priviledg or prescription are not chargeable with the payment of any such Tythes or that be discharged by any compositions real And afterwards there is another Branch in the said Act And be it further enacted That if any person do substract or withdraw any manner of Tythes Obventions Profits Commodities or other Duties before mentioned which extends to Custom of Tything i. e. Modus Decimandi mentioned before in the Act c. that then the party so substracting c. may be convented and sued in the Kings Ecclesiastical Court c. And upon the said Branch which is in the Negative That no person shall be sued for any Tythes of any Lands which are not chargeable with the payment of such Tythes by any Law Statute Priviledg Prescription or Real Composition And always when an Act of Parliament commands or prohibits any Court be it Temporal or Spiritual to do any thing temporal or spiritual if the Statute be not obeyed a Prohibition lieth as upon the Statute de articulis super Cartas ca. 4. Quod Communia Placita non tenentur in Scaccario a Prohibition lieth to the Court of Exchequer if the Barons hold a Common-Plea there as appeareth in the Register 187. b. So upon the Statute of West 2. Quod inquisitiones quae magnae sunt examinationis non capiantur in patria a Prohibition lieth to the Iustices of Nisi Prius So upon the Statute of Articuli super Cartas cap. 7. Quod Constabularius Castr Dover non teneat Placitum forinsecum quod non tangit Custodiam Castri Register 185. So upon the same Statute cap. 3. Quod See Lib. Entr. 450. a Prohibition was upon the Statute that one shall not maintain and so upon every penal Law See F. N. B 39. b. Prohibition to the Common Pleas upon the Stat. of Magna Charta that they do not proceed in a Writ of Praecipe in Capite where the Land is not holden of the King 1 2 Eliz. Dy. 170 171. Prohibition upon the Statute of barrenes and pettit is onely prohibited by implication Senescallus Mariscallus non teneant Placita de libero tenemento de debito conventione c. a Prohibition lieth 185. And yet by none of these Statutes no Prohibition or Supersedeas is given by express words of the Statute So upon the Statutes 13 R. 2. cap. 3. 15 R. 2. cap. 2. 2 H. 4. cap. 11. by which it is provided That Admirals do not meddle with any thing done within the Realm but onely with things done upon the Seas c. a Prohibition lieth to the Court of Admiralty So upon the Statute of West 2. cap. 43. against Hospitalers and Templers if they do against the same Statute Regist 39. a. So upon the Statute de Prohibitione regia Ne laici ad citationem Episcopi conveniant ad recognitionem faciend vel Sacrament praestanda nisi in casubus matrimonialibus Testamentariis a Prohibition lieth Regist 36. b. And so upon the Statute of 2 H. 5. cap. 3. at what time the Libel is grantable by the Law that it be granted and
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