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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A33627	Certain select cases in law reported by Sir Edward Coke, Knight, late Lord Chief Justice of England ... ; translated out of a manuscript written with his own hand, never before published ; with two exact tables, the one of the cases, and the other of the principal matters therein contained.; Reports. Part 13. English	Coke, Edward, Sir, 1552-1634.	1659 (1659)	Wing C4909; ESTC R1290	92,700	80

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

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 Bat● who made his last Will and Testament and made Sarah his wife his Executrix and died Sarah proved the Will and entred and was thereof possessed as Executrix and took to husband the said Robert Bedel by force whereof they in the Right of the said Sarah entred and were possessed thereof and that the Defendant was then Tenant and seised for his life of 300 acres of arable Lands in Litlington aforesaid which ought to pay Tithes to the Rector of Litlington and in anno 38 Eliz. the Defendant grano seminavit 200 acres parcel c. And that the Tithes of the same did amount to 150 l. and that the Defendant did not divide nor set forth the same from the 9 parts but took and carried them away against the form and effect 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

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

Iudg of the Prerogative Dr. James Dr. Martin and divers other Doctors of the Civil and Canon Law came attending upon them to the King to Whitehall the Thursday Friday and Saturday after Easter-Term in the Councel-Chamber where the Cheif Iustice and I my self Daniel Iudg of the Common-Pleas and Williams Iudg of the Kings-Bench by the command of the King attended also where the King being assisted with his Privy Councel all sitting at the Councel-Table spake as a most gracious good and excellent Soveraign to this effect As I would not suffer any novelty or Innovations in my Courts of Iustice Ecclesiastical and Temporal so I will not have any of the Laws which have had judicial allowances in the times of the Kings of England before him to be forgotten but to be put in execution And for as much as upon the contentions between the Ecclesiastical and Temporal Courts great trouble inconvenience and loss may arise to the subjects of both parts namely when the controversie ariseth upon the jurisdiction of my Courts of ordinary Iustice and because I am the head of Iustice immediately under God and knowing what hurt may grow to my Subjects of both sides when no private case but when the Iurisdictions of my Courts are drawn in question which in effect concerneth all my Subjects I thought that it stood with the Office of a King which God hath committed to me to hear the controversies between the Bishops and other of his Clergy and the Iudges of the Laws of England and to take Order that for the good and quiet of his Subjects that the one do not encroach upon the other but that every of them hold themselves within their natural and local jurisdiction without encroachment or usurpation the one upon the other And he said that the onely question then to be disputed was If a Parson or a Vicar of a Parish sueth one of his Parish in the Spiritual Court for Tythes in kinde or Lay-fee and the Defendant alledgeth a custom or prescription De modo Dec●mandi if that custom or prescription De modo Decimandi shall be tryed and determined before the Iudg Ecclesiastical where the Suit is begun or a Prohibition lyeth to try the same by the common Law And the King directed that we who were Iudges should declare the reasons and causes of our proceedings and that he would hear the authorities in the Law which we had to warrant our proceedings in granting of Prohibition in cases of Modo Decimandi But the Archbishop of Canterbury kneeled before the King and desired him that he would hear him and others who are provided to speak in the case for the good of the Church of England and the Archbishop himself inveighed much against two things 1. That a Modus Decimandi should be 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