are to be determined in our Law he shall have a Consultation because that the principal belongeth to them 38 E. 3. 5. Right of Tythes between two spiritual persons shall be determined in the Ecclesiastical Court And 38 E. 3. 6. where the Right of Tythes comes in debate between two spiritual persons the one claiming the Tythes as of common Right within his Parish and the other claiming to be discharged by real composition the Ecclesiastical Court shall have Iurisdiction of it And the said Iudges made humble suit to the King That for as much as they perceived that the King in his Princely Wisdom did detest Innovations and Novelties that he would vouchsafe to suffer them with his gracious favor to inform him of one Innovation and Novelty which they conceived would tend to the hinderance of the good administration and execution of Iustice within his Realm Your Majesty for the great zeal which you have to Iustice and for the due administration thereof hath constituted and made fourteen Iudges to whom you have committed not onely the administration of Ordinary Iustice of the Realm but crimina laesae Majestatis touching your Royal person for the legal proceeding also in Parliament we are called by Writ to give to your Majesty and to the Lords of the Parliament our advice and counsel when we are required We two chief Iustices sit in the Star-Chamber and are oftentimes called into the Chancery Court of Wards and other High Courts of Iustice we in our Circuits do visit twice in the year your Realm and execute Iustice according to your Laws and if we who are your publique Iudges receive any diminution of such reverence and respect in our places which our predecessors had we shall not be able to do you such acceptable service as they did without having such reverence and respect as Iudges ought to have The state of this Question is not in statu deliberativo but in statu judiciali it is not disputed de bono but de vero non de Lege fienda sed de Lege lata not to frame or devise new Laws but to inform your Majesty what your Law of England is and therefore it was never seen before that when the Question is of the Law that your Iudges of the Law have been made Disputants with him who is inferior to them who day by day plead before them at their several Courts at Westminster and although we are not afraid to dispute with Mr. Bennet and Mr. Bacon yet this example being primae impressionis and your Majesty detesting Novelties and innovations we leave it to your Grace and Princely consideration whether your Majesty will permit our answering in hoc statu judiciali upon your publique Iudges of the Realm But in Obedience to your Majesties command We with your Majesties gracious favor in most humble manner will inform your Majesty touching the said Question which we and our predecessors before us have oftentimes adjudged upon judicial proceedings in your Courts of Iustice at Westminster which Iudgments cannot be reversed or examined for any Error in Law if not by a Writ of Error in a more high and supream Court of Iustice upon legal and judicial proceedings and that is the ancient Law of England as appeareth by the Statute of 4 H. 4. cap. 22. And we being commanded to proceed all that which was said by us the Iudges was to this effect That the Tryal De Modo Decimandi ought to be by the Common Law by a Iury of twelve men it appeareth in three manners First by the Common Law Secondly by Acts of Parliament And lastly by infinite judgments and judicial proceedings long times past without any impeachment or interruption But first it is to see What is a Modus Decimandi Modus Decimandi is when Lands Tenements or Hereditaments have been given to the Parson and his successors or an annual certain sum or other profit always time out of minde to the Parson and his successors in full satisfaction and discharge of all the Tythes in kinde in such a place and such manner of Tything is now confessed by the other party to be a good bar of Tythes in kinde I. That Modus Decimandi shall be tryed by the Common Law that is that all satisfactions given in discharge of Tythes shall be tryed by the Common Law and therefore put that which is the most common case That the Lord of the Mannor of Dale prescribes to give to the Parson 40 s. yearly in full satisfaction and discharge of all Tythes growing and renewing within the Mannor of Dale at the Feast of Easter The Parson sueth the Lord of the Mannor of Dale for his Tythes of his Mannor in kinde and he in Bar prescribes in manner ut supra The Question is if the Lord of the Mannor of Dale may upon that have a Prohibition for if the Prohibition lyeth then the Spiritual Court ought not to try it for the end of the Prohibition is That they do not try that which belongs to the Tryal of the Common Law the words of the Prohibition being that they would draw the same ad aliud examen First the Law of England is divided into Common-Law Statute-Law and Customs of England and therefore the Customs of England are to be tryed by the Tryal which the Law of England doth appoint Secondly Prescriptions by the Law of the Holy Church and by the Common Law differ in the times of limitation and therefore Prescriptions and Customs of England shall be tryed by the Common Law See 20 H. 6. fo 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Archdeacon of Surry and declared how that he and his successors were seised by the hands of the Defendant by title of Prescription and the Defendant demanded Iudgment if the Court would hold Iurisdiction being between spiritual persons c. Stone Iustice Be assured that upon title of prescription we will here hold Iurisdiction and upon that Wilby chief Iustice gave the Rule Answer Vpon which it follows that if a Modus Decimandi which is an annual sum for Tythes by prescription comes in debate between spiritual persons that the same shall be tryed here For the Rule of the Book is general scil upon title of prescription we will hold Iurisdiction and that is fortified with an Asseveration Know assuredly as if he should say that it is so certain that it is without question 32 E. 3. Jurisd 26. There was a Vicar who had onely Tythes and Oblations and an Abbot claimed an Annuity or Pension of him by prescription and it was adjudged that the same prescription although it was betwixt spiritual persons should be tryed by the Common Law Vide 22 H. 6. 46. and 47. A prescription that an Abby time out of minde had found a Chaplain in his Chappel to say Divine Service and to minister Sacraments tryed at the Common Law 3. See the Record of 25 H. 3. cited
the said Act in such case the Appeal was to Rome immediately XXXV Mich. Term 5 Jacob. Rot. 30. In the Kings-Bench Prichard and Hawkins Case JOhn Prichard brought an Action upon the Case against Robert Hawkins for slanderous words publishèd the last day of August in the third year of the King viz. That Prichard which serveth Mistris Shelley did murder John Adams Childe Quandam Isabellam Adams modo defunct filiam cujusdem Johannis Adams of Williamstre in the County of Glocester innuendo upon which a Writ of Error was brought in the Exchequer Chamber upon a Iudgment given for Prichard in the Kings-Bench and the Iudgment was reversed in Easter Term 7 Jacobi because that it doth not appear that Isabel was dead at the time of the speaking the words for tunc defunct ought to have been in the place of modo defunct XXXVI Easter Term. 8 Jacobi In the Kings-Bench Dison and Bestneys Case HUmphrey Dison said of Nicolas Bestney utter Barester and Councellor of Grays-Inn Thou a Barester Thou art no Barester thou art a Barretor Thou wert put from the Bar and thou darest not shew thy self there Thou study Law Thou hast as much wit as a Daw. Vpon Not-guilty pleaded the Iury found for the Plaintiff and assessed damages to 23 l. upon which Iudgment was given and in a Writ of Error in the Exchequer Chamber the Iudgment was affirmed XXXVII Easter Term 8 Jacobi Regis In the Kings-Bench Smith and Hills Case NOah Smith brought an Action of Assault and Battery against Walter Hill in the Kings-Bench which began Pasc 7 Jacobi Rot. 175. upon Not-guilty pleaded a Verdict and Iudgment was for the Plaintiff and 107 l. assessed for damages and costs In a Writ of Error brought in the Exchequer Chamber the Error was assigned in the Venire facias which was certified by Writ of Certiorari and upon the Writ no Return was made upon the back of the Writ which is called Returnum album and for that cause this Easter Term the Iudgment was reversed XXXVIII Trinity Term 7 Jacobi In the Court of Wards Westcots Case IT was found by a Writ of Diem clausit extremum after the death of Roger Westcot That the said Roger the day that he dyed was seised of and in the moyety of the Mannor of Trewalliard in his Demesn as of Fee and of such his Estate dyed thereof seised and that the moyety of the said Mannor anno 19 E. 3. was holden of the then Prince as of his Castle of Trematon parcel of his Dutchy of Cornwall by Knights-service as it appeareth by a certain exemplification of Trematon for the same Prince made 9 Marcii 19 E. 3. And the words of the Extent were Willielmus de Torr tenet duo feoda dimid militis apud Pick Striklestomb Trewalliard per servitum militare reddit inde per annum 8 d. And it was resolved by the two chief Iustices and the chief Baron That the Office concerning the Tenure was insufficient and voyd because that the Verdict of a Iury ought to be full and direct and not with a prout patet for by that the whole force of their Verdict relyeth onely upon the Extent which if it be false he who is grieved shall have no remedy by any Traverse for they have not found the Tenure indefinite which might be traversed but with a prout patet which makes the Office in that point insufficient and upon that a Melius inquirendum shall issue forth and therewith agreeth F. N. B. 255. that a Melius inquirendum shall be awarded in Inch a Case The NAMES of the CASES CAse of the admiralty 7. Jac. 51. Case of S. Alphage parish in Canterbury 8. Jac. 70. Baron and Boyes case 6. Jac. 18. Case of repairing Bridges c. 7. Jac. 33. Bedell and Shermans case 40. Eliz. 47. Baylyes case 7. Jac. 48. Case in Chancery Hill 27. Eliz. 19. Case in the common Pleas. 6. Jac. 26. Collings and Hardings 39. Eli. 57. Case of Modus decinandi 6. Jac. 12. Case de Modo Decimandi and of prohibitions before the King 7. Jac. 37. Disow and Bestneyes case 8. Jac. 71. Edwards case 6. Jac. 9. Case in ejectione firmae 7. Jac. 58. Hulmes case 7. Jac. 61. Haywards and Sr. Iohn Whitebrookes case 64. Hughes and Crowthers case 7. Iac. 66. Haidon and Smiths case 8. Iac. 67. Muttons case 7. Iac. 59. More and Webs case 7. Iac. 65. Neale and Rowses case 6. Iac. 24. Porters and Rochesters case 6. Iac. 4. Ca. of prohibition 6. Iac. 30. Sir Allen Percies case 7. Iac. 60. Parliaments case 7. Ia. 63. Prichard and Haukins case 5. Iac. 71. Sir William Reades Boothes case 7. Iac. 34. Syrat and Heales case 44. Eliz. 23. Case of sewers 7 Iac. 35. Sparye case 7. Iac. 49. Samms case 7. Iac. 54. Smith and Hils case 8. Iac. 71. Taylor and Moyls case 6. Iac. 11. Willowes case 6. Iac. 1. Case in the court of wards 7. Iac. 48. Case in the Court of wards 7. Iac. 49. Wills case 7. Iac. 50. Westcots case 7. Iac. 72. THE TABLE A Acts of Parliament are parcell of the Law so to be judged by the judges of the Law fol. 4. Acts none may take upon him any act c. but who hath knowledge in the same 12. Apples not contained within the words of Stat. 5. E. 6. 14. against ingrossors 18. 19. Actions of claime to be brought within 5. yeares 21. Aid to the King who to pay it 26. 27. 28. For what 29. 30. Made certaine and when to be paid 25. Admirall his power how far it extends 51. 52. Court of Admiralty no Court of record 53. Avoury where it shall be good and maintaineable 58. B Brewer is within the act of the 5. El. 4. for that none may keepe a common brewhouse unlesse formerly apprentice 11. 12. Burgage tenure what it is 27. Bridges rivers sewers c. who ought to repair them and how compellable to it 33. Boote a saxon word the signification whereof various 68. Boote and estovers signifie all one thing 68. C Copyhold where a Copyholder may deny to pay his fine 2. Canterbury Arch bishop thereof cannot cite one out of his owne Diocese and the reason thereof 5. 6. 7. 8. Commission High commissioners their power and to whom extendible 11. 47. Customes what Customes shall be good and when and what not 12. 13. Customes where the Kings Court shall be ousted of jurisdiction in Modo decimandi and where not 18. Customes and prescriptions to be tryed by the common Law 40. Canon Eccles against the Kings perrogative the common law c. ipso facto voide 47. Common of Pasture who shall have it and who shall be debared and why 66. Common divided shall be rateable so that the land in which c. shal not be surcharged 66. Coppyholders may of common right take House-boote hedge boote Plough-boote upon his coppy hold 68. Shall have an action against his Lord for cutting
same but they estreat the same into the Exchequer which hath power by the Law to writ forth Proces to the Sheriff to levy the same But if a man be convicted in the Star-Chamber for Forgery upon the Statute of 5 Eliz. that in that case for the double costs and damages that an English Writ shall be made directed to the Sheriff c. reciting the conviction and the Statute for the levying of the said costs and damages of the goods and chattels and profits of the Lands of the Defendant and to bring in the mony into the Court of Star-Chamber and the Writ shall be sealed with the great Seal and the Test of the King For the Statute of 5 Eliz. hath given Iurisdiction to the Court of Star-Chamber and power to give Iudgment amongst other things of the costs and damages which being given by force of the said Act of Parliament by consequence the Court by the Act hath power to grant Execution Quia quando aliquid conceditur ei omnia concedi videntur per quod devenitur ad illud And it was resolved That the giving of the damages to the Plaintiff was begun but of late times and although that one or two Presidents were shewed against this Resolution they being against the Law the Iudges had not any regard to them The like Resolution was in the Case of Langdale in that Court XXXI Hillary Term 7 Jacobi Regis In the Common-Pleas Morse and Webbs Case IN a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of November in the third year of the Reign of the King that now is in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conusance because that the place where is an Acre of Land which is the Freehold of the said William Sherington and for damage-feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land in parcel of Downfield and that he himself at the time and before the taking c. was and yet is seised of two yard Land with the appurtenances in Luddington aforesaid And that he and all those whose Estate he hath in the said two yards of Land time out of minde c. have used to have Common of pasture per totam contentam of the said place called the Downfield whereof c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep at certain times and seasons of the year as to the said two yards Lands with the appurtenances appertaining and that he put in the said two Oxen to use his Common c. And the Defendant did maintain his Avowry and traversed the Prescription upon which the parties were at issue and the Iury gave a special Verdict That before the taking one Richard Morse Father of the said John Morse and now Plaintiff whose Heir he is was seised of the said two yards Lands and that the said Richard Morse c. had the Common of Pasture for the said Cattel per totum contentum of the said Downfield in manner and form as before is alledged and so seised The said Richard Morse in the twentieth year of Queen Elizabeth demised to William Thomas and John Fisher divers parcels of the said two yards Lands to which c. viz. the four Buts of arable with the Common and intercommon to the same belonging for the term of four hundred years by force of which the said William Thomas and John Fisher entered and were possessed and the said Richard so seised dyed thereof seised by which the said two yards Lands in possession and Reversion descended to the said John Morse the now Plaintiff And if upon the whole matter the said John Morse now hath and at the time of the taking c. had Common of Pasture c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep c. as to the said two Acres of Land with the appurtenances belonging in Law or not the Iury prayed the advice of the Court. Note that this Plea began Trin. 5 Jacobi Rot. 1405. And upon Argument at the Bar and at the Bench it was resolved by the whole Court that it ought to be found against the Defendant who had traversed the Prescription For although that all the two years Lands had been demised for years yet the Prescription made by the Plaintiff is true for he is seised in his Demesn as of Fee of the Freehold of the two yards of Land to which c. And without question the Inheritance and Freehold of the Common after the years determined is appendant to the said two yard Lands and therefore clearly the issue is to be found against the Defendant But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in evidence 2. It was resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shall have Common Rateable and in such manner that the Land in which c. shall not be surcharged and if so small a parcel be demised which will not keep one Ox nor a Sheep then the whole Common shall remain with the Lessor so always as the Land in which be not surcharged 3. It was resolved That Common appendant unto Land is as much as to say Common for Cattel levant and couchant upon the Land in which c. So that by the severance of part of the Land to which c. so prejudice can come to the Ter-tenant in which c. 4. See the Case of in the fourth part of my Reports fo was affirmed for good Law and there is no difference when the Prescription is for Cattel levant and couchant and for a certain number of Cattel levant and couchant But when the Prescription is for Common appurtenant to Land without alledging that it is for Cattel levant and couchant there a certain number of the Cattel ought to be expressed which are intended by the Law to be levant and couchant XXXII Hill 7 Jacobi Regis In the Common-Pleas Hughes and Crowthers Case IN a Replevin between Robert Hughs Plaintiff and Richard Crowther Defendant which began Trin. 6 Jacobi Rot. 2220 The Case was that Charls Fox was seised of six acres of Meadow in Bedston in the County of Salop in Fee and 10 Octob. 9 Eliz. leased the same to Charls Hibbens and Arthur Hibbens for 60 years if the aforesaid Charls Hibbens and Arthur Hibbens should so long live and afterward Charls died and if the Lease determine by his death was the Question and it was adjudged That by his death the Lease was determined for the life of a man is meer collaterall unto the Estate for years otherwise it is if a
not of Tythes severed from the nine parts for that shall be in Case of a Praemunire and it appeareth to the Common Law See 16 H. 2. in the Case of Mortuary Vide Decretalia Sexti Lib. 3. tit de Decimis cap. 1. fo 130. Col. 4. Et summa Angelica fo 72. the same And that also appeareth by Linwood amongst the Constitutions Simonis Mephum tit de Decimis cap. Quoniam propter fo 139. 6. verbo Consuetudines Consuetudo ut non solvantur aut minus plene solvantur Decimae non valet and ibidem secundum alios Quod in Decimis realibus non valet Consuetudo ut solvatur minus decima parte sed in personalibus c. And ibidem Litt. M. verbo Integre faciunt expresse contra opinionem quorundum Theologorum qui dicunt sufficere aliquid dari pro Decima And that is the true Reason in both the said Cases scil de modo Decimandi de Limitibus Parochiorum c. that they would not adjudg according to their Canons and therefore a Prohibition lieth and therewith agreeth 8 E. 4. 14. and the other Boóks abovesaid and infinite presidents and the rather after the Statute of 2 E. 6. cap. 13. And also the Customs of the Realm are part of the Laws of the Realm and therefore they shall be tryed by the Common Law as is aforesaid See 7 E. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Iustices VI. Mich. 6 Jacob. in the Exchequer Baron and Boys Case IN the Case between Baron and Boys in an Information upon the Sur Stat. 2 E. 6. cap. 14. of Ingrossers Statute of 5 E. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer That the Defendant had ingrossed Apples against the said Act The Barons of the Exchequer held clearly That Apples were not within the said Act and gave Iudgment against the Informer upon the matter apparent to them and caused the same to be entered in the Margent of the Record where the Iudgment was given and the Informer brought a Writ of Error in the Exchequer chamber and the only Question was Whether Apples were within the said Act the letter of which is That whatsoever person or persons c. shall ingross or get into his or their hands by buying contracting or promise taking other then by Demise Grant or Lease of Land or Tythe any Corn growing in the Fields or any other Corn or grain Butter Cheese Fish or other dead Victual within the Realm of England to the intent to sell the same again shall be accepted c. an unlawful Ingrosser And although that the Statute of 2 E. 6. cap. 15. made against Sellers of Victual which for their great gain conspire c. numbereth Butchers Brewers Bakers Cooks Costermongers and Fruterers as Victualers yet Apples are not dead Victuals within the Statute of 5 E. 6. For the Buyers and Sellers of Corn and other Victuals have divers Provisoes and Qualifications for them as it appeareth by the said Act but Costermongers and Fruterers have not any Proviso for them also always after the said Act they have bought Apples and other Fruits by Ingross and sold them again and before this time no Information was exhibited for them no more then for Plums or other fruit which serveth more for delicacy then for necessary Food But the Statute of 5 E. 6. is to be intended of things necessary and of common use for the sustenance of man and therefore the words are Corn Grain Butter Cheese or other dead Victual which is as much to say as Victual of like quality that is of like necessary and common use But the Statute of 2 E. 6. cap. 15. made against Conspiracies to enhaunce the prices was done and made by express words to extend it to things which are more of pleasure then of profit So it was said That of those Fruits a man cannot be a Forestaller within this Act of 5 E. 6. for in the same Branch the words are any Merchandize Victual or any other thing But this was not resolved by the Iustices because that the Information was conceived upon that branch of the Statute concerning Ingrossers VII Hill 27 Eliz. in the Chancery HIllary Term the 27 of Eliz. in the Chancery the Case was thus One Ninian Menvil seised of certain Lands in Fee took a wife Fine Dower Relation and levyed a Fine of the said Lands with proclamations and afterwards was indicted and out-lawed of High Treason and dyed The Conusees convey the Lands to the Queen who is now seised the five years pass after the death of the Husband The Daughters and Heirs of the said Ninian in a Writ of Error in the Kings Bench reverse the said Attainder M. 26 and 27 Eliz. last past and thereupon the Wife sueth to the Queen who was seised of the said Land as aforesaid by Petition containing all the special matter scil the Fine with proclamations and the five years passed after the death of her Husband the Attainder and the reversal of it and her own title scil her marriage and the seisin of her Husband before the Fine And the Petition being endorsed by the Queen Fiat droit aux parties c. the same was sent into the Chancery as the manner is And in this case divers Objections were made against the Demandant 1. That the said Fine with proclamations should bar the Wife of her Dower and the Attainder of her Husband should not help her for as long as the Attainder doth remain in force the same was a bar also of her Dower so as there was a double bar to the Wife viz. the Fine levyed with proclamations and the five years past after the death of her Husband and the Attainder of her Husband of his Treason But admit that the Attainder of the Husband shall avail the Wife in some manner when the same is now reversed in a Writ of Error and now upon the matter is in Iudgment of Law as if no Attainder had been and against that a man might plead That there is no such Record because that the first Record is reversed and utterly disaffirmed and annihilated and now by Relation made no Record ab initio and therewith agreeth the Book of 4 H. 7. 11. for the words of the Iudgment in a Writ of Error are Quod Judicium praedict Errores praedict alios in Recordo c. revocetur admittetur c. quod ipsa ad possessionem suam sive seisinam suam as the case requireth tenementorum suorum praedictorum una cum exitibus proficuis inde a tempore Judicii praedict reddit praecept ad omnia quae occasione Judicii illius omisit restituatur By which it appeareth that the first Iudgment which was originally imperfect and erroneous is for the same Errors now adnulled and revoked ab initio and the party against whom the Iudgment was given restored to his possession and to
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
downe Timber trees 69. D Dower how a wife may be barred of her dower and for what 19. 20. 21. 22. Where shee shall be indowed and when 20. 22. 23. Damages treble where to be sued for 24. Decimandi modus what it is and by whom to be tryed 37 38 39. 40 Plea of Modus decimandi where good and where not 43. E Error writ of error so annihilates a record as if it had never been 20. What shal be recovered therein 21. 22. Executor summons and severance lyeth in any suite brought as executors 32. Error where amended and where not 54. Error what is sufficient to renue a judgement or confirme it 71. Estopel what and the force thereof 62. F Fine reasonable in Copihold must have a set time for payment 2. It must be reasonable and not excessive 2. 3. 4. By whom to be adjudged 3. What is a reasonable fine and what not 3. Fees what Fees may be taken for proving a will and extortion therein how punishable 24. 25. 26. Forgery what and how punishable 34. 35. H Heire entry of the heire where lawfull 49. I Iudge ecclesiasticall his power to examine upon oath 10. Ioint-tenants and tenants in common the difference betweene them 55 56 57. Ioint-tenants may be seized to answer though they come at unusuall times to it 56. K King Land given to the King discharged of tythes 15 Where the Kings have the mean profits of Land and where not 49. L Lands how they may be discharged of Tythes 15. Land where it shall descend and and where not 50. Law will doe no wronge 21. Law of England how divided 40. Livery where no livery or Ouster le maine shall need to be sued 50. 51. The maner of suing livery and the forme of the writ 62. Lease for yeares to two if they so long live if one dye the leafe is determined 66. M Messuagium Tenementum their difference 48. Manor how a Lord of a Mannor may wrong his Copy-hold tenant 68 Mvlius inquirendum where it lyeth and for what 72. O Office where necessary to be found where not and when it must be found 22. 63. Where it shall be insufficient 50. It shall not be an estopel and the reason thereof 61. P Prohibition when and where it lyeth and against whom 8 9 10. 41 42 43 70. Parishes and townes their bounds triable onely by common law the reason why 17 18. Pirates how when and by whom punishable 53 54. Parliament privileges orders and customes of Parliament onely to be decided in Parliament 63. Processe star-chamber cannot make Processe against either Lands or goods 64. R Â Rex est persona mixta 17. Replevin by whom grantable and for what 31. Rent when it may be divided and upon what occasion 57. Reparations in houses if necessary to be shewed in certaine et contra 68. S Â Statutes to be repealed by none but by statutes 17. Socage tenure what 27. Sewers Commissioners thereof their Power how far and to what it extends 35 36. Seizin where no primer Seizin shal be 50. Severante of part of a reversion looseth not the intire rent 58. Sorcerers and inchanters who and their punishment 59. T Â Tythes how satisfaction may be given in discharge of tythes 14 46. They cannot be altogether taken away 14. Where and how they may be altered into an other thing 15 16. 41. How many waies one may be discharged of tithes and of what payable 16. If divided from the nine parts not to be sued for in Court Ecclesiasticall if it be without fraud 23. Where the right of tithes may be tryed 39. 58. Treason how and by whom punishable 54. Timber trees who may cut them and who may not 60. Trespasse action therein where it lies against whom and for what 69 V Â Vse where a use may be limited where not 55. Who shall have the use 56. W Â Wast what adjudged Wast and where it lieth 61. Wife where a wife shall have an estate for life 49. Wards who shall be a ward to the King 55. 57. Waste who shall be chargeable in a writ of Wast 69. sY Â Yorke the President and councill of Yorke their power how far it extendeth 31. FINIS