then c. And in an action of debt brought upon this Bond the Defendant pleaded non requisivit which was found against him and in arrest of Judgment it was moved that this Bond was made for the performance of a Symoniacal contract and therefore void but notwithstanding the Court gave Judgment for the Plaintiff and two reasons are given for the Judgment the first was because there was no averment of the Symony second that it was not material as to the Bond because that Statute did not make the Bond or Contracts void but only the presentation c. for this I clearly infer from the conclusion of the case But I confess the sense of the Court was that in truth if a man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take a bond of such person as he shall present to resign when his Son is become capable of such Living and I have nothing to say against that opinion but it is very just and reasonable nature obliging that every one should take care for his posterity but if a Patron take a Bond absolutely to resign upon request without any such cause as the preferment of a Son or to avoid pluralities or non-residence or such reasonable cause but only to a corrupt end and purpose to exact Money by this Bond from the Incumbent or attempt it though perhaps the Bond may be good against the Person that entred into it yet I am clear of opinion for my own part that the said Bond makes the Church void and gives the presentation to the King and it should seem in Jones and Laurence's case that if Symony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was The other Case upon which these subtil Simonists build Cro. Car. 180. Hur. in Jones 220. was between Babbington and Wood 5 Car. 1. B. R. where the Case was likewise in debt upon an Obligation with a Condition that whereas the Plaintiff intended to present the Defendant to such a Living that if the Defendant upon request after his admission should resign that then the Bond to be void c. Upon Oyer of this Bond and Condition the Defendant demurred and Judgment was given for the Plaintiff But all the Court conceived that if the Defendant had averred that the Obligation had been made with intent to exact money make a Lease c. which in it self had been Simony then upon such a Plea peradventure it might have appeared to have been Simony and then it might have been a question whether the Bond had been good or no but upon this Demur it did not appear there was any Simoniacal Contract and such a Bond might be made upon a good and lawful design as the preferment of a Son as in Jone's and Laurence's Case before to avoid non-Residence Pluralities c. So that it appears by both these Cases that Bonds taken upon prudent and just ends to resign are non-Simoniacal but where such Bonds are taken upon corrupt designs and it be made appear by any subsequent practice or action it is clearly Simony as if the Bond had been expresly to pay money for what difference is there between a Bond expresly to pay money and a Bond to resign which is to pay money if the Patron say either pay me so much or resign when all the world knows in such a Case the Parson must pay the money or resign and be undone And the world shall never perswade me that those reverend Judges that gave these Judgments ever intended further and I hope that those reverend Judges that now supply their places will discountenance and discourage such practices that tend so much to the ruine of the Church and Religion for I know no Law that tends more to the advancement of learned and religious men than this Law doth and therefore ought to have a benign construction to the end it was designed I find a Case reported Noy 22. T. 15 Jac. ro 2051. C. B. I cannot say that is by an Authentick hand but such as it is I will give it the Reader it was between Sir John Pascall and one Clerk in the 15 year of King James upon evidence to a Jury it was held that such a Bond was Simoniacal but the Circumstances not appearing in the book the Case can be of no great Authority But before I shake hands with these Bonds for Resignation it will be convenient I give my young Clergy-man some cautions against them for it is an old saying the Resetter is worse than the Thief for without Resetters there would be sew theeves And 1. Advice against Bonds for Resignation I hold it a great disreputation for any Clergy-man to give any such bond which may have the least tincture of Simony nor do I believe any man of worth will do it unless it be upon such reasons as aforesaid 2. If such Bond carry with it a Simonaical corrupt design it makes the Clerk no less guilty of Simony than the corrupt Patron and then the Clerk not only loses his Living by this Statute and is for ever incapacitated to have it by any suture Presentation and by the Canon-Law is to be degraded and incapacitated to all other Lastly if he do not resign upon request 3 Inst 153. Margine Noy 72. he is subject to the whole penalty of the bond for Simoniacal Bonds Contracts c. are not made void by this Act but only the Presentment c. And so you may observe a difference between malum in se and malum prohibitum by the Statute or by the Canon-Law whereof the Judges at Common Law take no notice It is now to be considered What Covenants and agreements are within this Law what Covenants or Agreements shall be said to be Simoniacal within this Law If a Father-in-Law upon the marriage of his Daughter covenant with his Son-in-Law without any consideration Cro. â—ar 425. but voluntarily that when such a Church falls void which is in his gift that he will present him to it this is no Simony within this Law but it should seem that such Covenant in consideration of marriage or any other consideration had made it Simoniacal So where the Patron took a bond from the Presentee to pay 10 l. Noy 142. Baker vers Mountford yearly towards maintainance of his Predecessor's Son whilst he remained in the University unpreferred was held no Simony And in that Case it was said by Foster Justice that it was adjudged in the Earl of Sussex's case where the Patron took a Bond of the Incumbent to pay 5 l. per annum to the Widow of his Predecessor it was not Simony these were good charitable Resolutions sed quaere rationem inde and Foster said that notwithstanding great opposition in that Case the Parson enjoyed the Living at that time In the
almost penned in the same words for the double value would make a man at a stand what the meaning of the Parliament was and it was forty years when almost all that were at the making of this Act were dead before it was found out 2 Inst 650⸫ that an Action of Debt lay upon this Clause at Common Law for the treble damages To wit Pasch 29. Eliz In the Exchequer in an Information by the Queens Attorney against one Wood for the treble value as forfeited to the Queen In which Cause it was resolved that an Action of Debt lay at the Common Law for the treble damage for not setting forth of Tithes for wheresoever an Act of Parliament gives a forfeiture against him that doth dispossess c. the Owner of his property as here he doth of his Tithes there the forfeiture is given to the Party grieved or dispossessed since which resolution Actions of Debt have been frequently brought in all the Courts of Westminster by Parsons Vicars Propriators Owners and Farmers of Tithes as well Lay as Spiritual upon this Statute but being so long before it was found out that an Action lay at Common Law upon this Statute the Plaintiffs in the recital of the Statute alledged it to be made the fourth of February 2 E. 6. whereas in truth the Parliament begun the 1 of E. 6. and was held by Prorogation the fourth of February 2 E. 6. And this being discovered in an Action between Oliver and Colier P. 6. Jac. B. R. brought upon this Statute wherein the Statute was misrecited as aforesaid and exception taken to it in arrest of Judgment 1 Brownlow 100. Yelver 126. Dyer 171. p. 6. Stile 122. the Court upon good advisement overruled the exception by reason of the multitude of Presidents and affirmed the Rule that multitudo errantium parit errori Patrocinium Now considering that this is become a very frequent Action in use I conceive it will not be improper to the present occasion to communicate to the Reader what I have observed and learned in this kind of Actions not only concerning the Forms of Declarations Pleadings Verdicts and Judgments but likewise what evidence is necessary upon the general Issues of non culpa and nil debet for the Plaintiff and Defendant and in the first Case consider in what Cases and by whom and against whom this Action may be brought If two be Joynt Tenants Hutton 121⸪ 122⸫ By whom and against whom Actions lye in this Statute and they enter and occupy jointly the Action must be brought against them joyntly but if one only enter and occupie them the Action must be brought against him that only occupies alone But if there be two Tenants in Common and one of them sets out his Tithe and the other carries it all away there the Action shall be brought against him that carries it all away alone If the Husband and Wife in the right of the Wife be intitled to Tithes Noy 3.136 1 Brown 86. Yelv. 63. Cro. Jac. 68. they shall joyn in this Action because the damage is to survive but a Parson and a Vicar cannot joyn but if they joyn in a Lease to a third person their Farmer may sue for all in one Action but in the first Case I see no reason but that the Husband may bring the Action alone and so I have known it often done In an Action brought upon this Statute The Form of the Declar. Bellet vers Henworth P. 1657 B. R. the Severance was alledged before the sowing and exception taken after Verdict but the Exception was disallowed because the shewing of the sowing was superfluous and so aided by the Verdict The taking was alledged after the Plaintiffs Term was ended Cro. Car. 324. and yet held good M. More 911. 40 and 41 Eliz. A Judgment was arrested because the Suit was brought ad respondend tam Domino Regi quam Parti but this Case I very much doubt for being against a Statute Law it is a contempt finable though the Plaintiff have the forfeit as upon the Statute of Huy and Cry Hetley 121. c. And I take the Case inter Luvered and Owen M. 4. Jac. C. B. for the better Law where it was held good Upon an Action brought by two upon this Statute Cro. El. 170. who made their Title by a Lease from a Patentee of the King and exception was taken because they did not shew the Patent but disallowed 1. Because the Letters Patents did not belong to the Plaintiffs 2. Because the Plaintiffs did not demand the Tithes themselves but damages for a tort another Exception was taken to the Declaration because the Plaintiff alledged the Defendant did not agree with them and did not say or either of them but held good by Intendment And it hath been adjudged 2 Bulst 65.228.183 1 Brown 86. Noy 3. Yelv. 63. Cro. Jac. 68.361 that in this Action the Plaintiff needs not to shew his Title especially but it is enough for him to alledg that he is Propriator Farmer or Rector generally without shewing how And it hath been held good 2 Brown 70 71. though the Plaintiff in his Declaration do not express the quantities or loads of the Corn or Hay carried away 2 Inst 650. And so it is though you do not express in your Declaration the kinds of the Grain carried away Where a man alledged Coke vers Smith H. 7. Car. 1.10 587. B. R. per Lat. that he was Farmer of all the Tithe Corn arising c. upon sixty Acres of Land in D. and did not alledg which they were in certain and yet allowed for good 2. The Plaintiff alledged the Defendants Occupiers but did not say whether joyntly or in common and yet held good 3. The Plaintiff had alledged no time of the carrying away but having alledged the time of the severance and the carrying away coming in with a Conjunction Copulative it was held well enough In an Action brought upon this Statute Cto Jac. 324. 2 Bulst 114. the Plaintiff averred in his Declaration that he was subditus dictii Domini Regis having recited the Statute and it was held nought because it must necessarily be intended E. 6. and not of the present King In an Action upon this Stat. Pleas in this Action Porter vers Rochester Hill 9 Jac. B. R. the Defendant pleaded a Recovery in the Ecclesiastical Court but it was held no good Plea at Common Law but I conceive it would be a good evidence upon nil debet pleaded otherwise the Parishioner were in an ill Condition In this Action non culpa and nil debet have been both held good Issues Wortley vers Empringham P. 42. El. B. R. Hob. 218. Cro. El. 766. Cro. Jac. 361. but it is no good Plea to plead that the Plaintiff sowed the Corn and sold it to the Defendant because this matter will not excuse the payment of Tithes Now having
brought the cause to issue upon nil debet or non culpa we will shew in the next place what will be good and material evidence as well for the Plaintiff as Defendant First What Evidence is necessary in this Action ex parte quere If the Plaintiff be a Parson Vicar or other Ecclesiastick and have not been some considerable time in possession of his Living in which I have not observed any constant rule amongst the Judges in their practice but ten years quiet possession for the most part is allowed by the Judges for an evidence of the Plaintiffs Title unless some material objection be made against it to draw it into question but if the Plaintiff have been but for some short time in possession or the possession litigious then the Judges usually put the Plaintiff to prove his institution and induction and now he must prove that he was in Episcopal Orders at the time of his institution otherwise his institution is void by the late Act of Uniformity he must produce a Certificate under the Hand and Seal of the Bishop c. that instituted him that he subscribed the declaration mentioned in the Act of Uniformity and must prove he subscribed the same in the presence of the Bishop or c. and he must prove that within two Months after he was inducted upon some Sunday or Lords day during Divine Service he read the thirty nine Articles of Religion in the Parish Church into which he was inducted and that he did declare his unfeigned assent and consent to all things therein contained and he must likewise prove that within two Months after actual possession of his Living he read Morning and Evening Prayer in his Church upon some Lords day and openly and publickly before the congregation declared his assent and consent to the use of all things therein contained and prescribed in these words I A. B. do here declare my unfeigned assent and consent to all and every thing contaiend and prescribed in and by the Book Intitled the Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form or manner of making or Ordaining and Consecrating Bishops Priests and Deacons The Parson Vicar c. having thus made himself a Title must proceed to prove the taking and carrying away the Corn Hay c. and the value and if need be that the Land lies within the Parish c. but this the Judges put them to prove first of all commonly But if the Plaintiff be a Farmer or Patentee under the Crown he must prove his Title but if he have been any considerable time in possession and the Title not controverted the Judges seldom put the Plaintiff to shew any more Title but his bare possession and enjoyment and that others pay him Tithes And so having shewed what is necessary the Plaintiff should be prepared to prove I will proceed to shew what defence the Defendant may make The Defendant upon the general issue of not guilty Ex Parte Defendentis Brown 1. 34. c. may prove that he duly set forth his Tithes but if he afterwards carried them away it will not serve his turn so if he sell his Corn privately to another and after he has sold it privately 2 Inst 649⸪ cuts and carries it away the Action lies against the first Owner the same Law is where the Owner of the land privately sells his Corn to another who privately cuts and carries it away And the Defendant may prove that another has a better Title to whom he has paid his Tithes or compounded with him for them Or he may prove that the Parson came in by Simony or any other matter that makes his presentation institution or induction void or any other defect in not reading the Articles c. Or he may prove that he set forth his Tithes and a Stranger carried them away or may give in evidence a Lease or Grant from the Plaintiff himself or any other to whom he can make a good Title but such Leases and Grants must be in writing unless for one year only to the Owner of the Land which hath been held good by way of retainer The Jury if they find for the Plaintiff Verdict are to find how much of the debt demanded by the declaration is due to the Plaintiff which they are to do by trebling the value of the Tithe subtracted wherein they are usually assisted by the Court. The judgment is always given for the debt found by the Jury without costs Judgment because this Action is grounded upon a penal Law where no Action lay at Common Law neither shall the Defendant have any costs if the Verdict pass for him but if judgment be given for the Plaintiff in an Action brought upon this Statute by nihil dicit non sum informatus Cro. Jac. 361 362. or demurrer the Plaintiff shall have Judgment for the whole debt demanded by his declaration And if an Action upon this Statute be brought against two or more and Verdict only pass against one or part of the Defendants the Plaintiff shall have Judgment against those against whom the Verdict passes Stiles 317 318. though the others be acquitted quod nota Note that this Statute as to the treble value and double value extends only to Predial Tithes Nota. and not to Personal mixt or other Church duties The Exchequer likewise by English bill holds plea for the single value Jurisdiction of the Exchequer for subtraction of all manner of Tithes Oblations c. of which great use hath been made since the late Wars and there they decree the single value with costs and the future payment which is of great advantage to the Plaintiffs and these suits are not interrupted with prohibitions but these suits are often very costly too for if a modus decimandi or the bounds of the Parish come in question and the proof not very clear they are frequently sent to Trials at Law which gives delay and increases the charges very much this Jurisdiction I take it is much fortified since Tenths and first-fruits were annexed to the Crown but Suits of this nature were early brought in this Court before the War however there are some antient Books prove that this Court on the Law side has assumed Jurisdiction of Tithes 38 Ass p. 20. 44 E. 3.43 44. but the reporter reports it with a quod mirum Lastly 50 E. 3.20 2 H. 4.15 20 H. 6.17 1 H. 6.5 2 E. 4 5. 44 Ass p. 25. it is evident in our Books of Law that the rights of Tithes were frequently determined at Common Law in Actions of Trespass for taking away of Tithes unless both parties were Clergy-men and sometimes Assises have been brought at Common Law for Tithes
unless the Clerk be de facto presented or collated upon such corrupt Contract And it matters not whether the Incumbent that comes in by a Symoniacal contract were privy thereunto or not Clerk not Privy to the Symony as to making the Church void but the great question is whether the Clerk that is presented upon a Symoniacal contract to which he is neither party nor privy be disabled for that turn to be presented by the King to that Church I have seen the Report of a Case in the latter end of the Reign of King James Fowler vers Lapthorn P. 17. Jac. B. R. where it was adjudged that if a Clerk were presented upon a Symoniacal Contract to which he was not party or privy that yet notwithstanding it was a perpetual disability upon that Clerk as to that Living And in the Case of Baker and Rogers Cro. El. 788. M. 42 and 43 El. B.R. The case was Baker agreed the Church being void to give the Patron 180 l. for the Presentation who presented his Brother who knew nothing of the corrupt Contract till after Induction and though it was clear that the grant of the Presentation during the vacancy was merely void and that Baker presented as an Usurper that yet notwithstanding the Clerk was in by the corrupt Contract because it was not to be intended that the Patron would have suffered the Usurpation had it not been forthe corrupt Contract and there it should seem by Mr. Justice Warburton that the Clerk was disabled quoad hanc And in a Cause between the King and the Bishop of Norwich Cole and Sair Cro. Jac. 385. Bulst 3.92 Sir George Crook who was a Counsel in the Cause reports that Sir Edward Cook affirmed it had been adjudged that if a Church be void and a stranger contracts for a Sum of Money to present one who is not privy to the agreement that notwithstanding the Incumbent coming in by the Symoniacal Contract is a person disabled to enjoy that Benefice although he obtain a new Presentation from the King for the Statute as to that Living has disabled him during Life I must acknowledg if the Law be so taken it is very severe but let us hear Sir Edward Cook himself speak 3 Inst 154⸫ and he in his Comment upon this Statute says that it was adjudged in the before mentioned Case of Baker and Rogers that where the Presentee is not privy nor consenting to any such corrupt Contract as is forbidden by this Statute because it is no Symony in him there the Presentee shall not be adjudged a disabled person within this act for the words of the Statute are And the person so corruptly giving So as he shall not be disabled unless he be privy to the Contract and so says he there it was resolved M. 13. Jac. And Sir Edward Cook in that Book Co. 12.101 that goes under the name of his twelfth Report and without doubt was his own reports that it was so adjudged in the case of Doctor Hutchinson Parson of Kenne in Devonshire by the whole Court that if a Clerk be presented upon a corrupt contract within this Statute although the Clerk be not privy thereunto yet the presentation admisson and induction are all void within the Letter of the Statute for the Law intended to inflict punishment upon the Patron being the Author of this corruption by the loss of his presentation and upon the Incumbent who came in by such a corrupt Patron by the loss of his Living although he never knew of the corrupt Contract but if the Presentee were not cognizant of the corruption then he 's not within the clause of disability within the same Statute and so says he was the opinion of all the Judges of Sarjeant-Inn in Fleet-street Mich. 8. Jac. And it seems to me upon the penning of the Statute that this opinion is more rational than the former for the words of the Statute are That the Person so corruptly taking procuring seeking or accepting shall c. from thenceforth be adjuged a disabled Person in Law to have or enjoy c. And though the Incumbent in this case take and accept the Benefice upon the corrupt contract yet as to him it is not corrupt But this being a point thus controverted Quaere I shall not take upon me to determine but leave it to the Judgment of the more learned I shall in the next place shew what Contracts have been held Simoniacal within the meaning of this Law What Contracts shall be said Symonical In a Cause between Doctor Graunt and one Bowden Hill 16. Jac. ro 667. C. B. it was held upon an Evidence to a Jury that where two Parsons agreed to change their Livings and the one promised his Patron that if he would present the other with whom he was to exchange that he should make the Patron a Lease of his Tithes at such a Rent and this was held Symony although the other was not privy to the Contract he making the the Lease after The Father in the presence of his Son being a Clerk purchased the next advowson of a Church More 916. Cro. El. 685. Smith vers Shelburne the present Incumbent of the Church being sick and not likely to live who soon after died and he presented his Son and this was held Symony within this Statute but if this had been done in the absence of his Son it had not been Symony because the Father is bound to provide for his Son quaere of the difference And by Hutton it was held Symony to purchase the next Advowson Winch 63. Sheldon vers Brett Hob. 165. the Incumbent being sick In the case of one Winchcombe against the Bishop of Winchester and Puleston the case was one Say bargained with the Patron the Incumbent being sick for ninety pounds to present him when the Church should be void and for the better assurance take a Grant of the next avoidance to Friends in trust the Incumbent died Say was presenred and this was held Symony within this Law There is of late time a practice introduced by corrupt Patrons that Bonds for Resignation if not nipt early in the budding will make this good Law of no effect I mean the taking Bonds for resignation And this practice took its rise from two cases in Sir George Crook's Reports The first was between Jones and Laurence 8. Jac. The Case was thus Cro. Jac. 248.274 Jones had a Son which he intended to be a Clergy Man and having obtained a Presentation from Queen Eliz. for the Church of Streetham agreed with the Defendant that he should be presented so that he would resign when Jones his Son was qualified for the Living whereupon the Defendant entred into a Bond of a thousand Marks penalty to the Plaintiff upon this condition having first recited the agreement that if the Defendant within three Months after request should absolutely resign his said Benefice that
month after he is inducted allowing a reasonable deduction for the Rent reserved upon such Lease But in both Cases the Lessee must pay the reserved Rent to the succeeding Incumbent who is inabled to sue or distrain for the same And such Lease must be in writing under hand and seal and not by parol But it should seem the Statute of 13 El. 13. El. cap. 20. before has made this Law of no effect And having now done with these Statutes as to Leases let us next consider what Bonds Covenants Promises c. 18 El. c. 11. are void within the Statute of 18 Eliz. before-mentioned Covenants Bonds c. Hob. 269⸫ Covenants Bonds which good made for the enjoying houses within Cities Corporations c. are not void within this Law for this Law makes no Bonds Covenants c. void which are not against the intent of this Statute and the Statute of 13 El. cap. 10. but Leases of Houses and Lands in Cities c. by the Stat. of 14 El. c. 11. are exempted out of 13 El. cap. 10. and are not within the Stat. of 18 El. before A Parson made a Bond to resign upon request More 641⸪ and afterwards a Lease to his Patron of part of the Glebe for twenty one years in an Action brought upon this bond the Incumbent pleaded the Statute of 18 Eliz and averred that this Bond was made to secure this Lease and to compel the Incumbent to reside and adjudged a good Plea and an apt averment A Parson made a Lease Cro. El. 489. Noy 66. and in the Lease covenanted not to be absent by the space of 80 days in any one year and gave Bond for the performance and after became non-resident by 80 days and resolved that the Bonds and Covenants were both void A Parson made a Lease Olivers Case M 4. Jacob. B. R. and covenanted neither to do or suffer to be done any matter whereby the Lease should become void and after became non-resident by the space of 80 days in a year and this was held a good Covenant and a Covenant that the Parson should be resident was held not to be against this Law by Popham Tanfield and Clencb against Williams Quaere Leases of Coll. Hospitals Ideo quaere And having now done with Leases to be made by Ecclesiasticks of every kind and having therein exceeded my bounds beyond Parsons and Vicars to all other Ecclesiasticks since the Leases of Colledges and Hospitals come in my way I will give the Reader what satisfaction I can concerning them And as to them It is to be observed that they are not comprehended in the inabling Statute of 32 H. 8. nor in no other Statute that I find till the restrictive Statute of 13 El. 13 El. cap. 10. whereby amongst the rest the Masters and Fellows of Colledges and the Masters and Guardians are disabled to make any Grants or Conveyances of any of their possessions other than for twenty one years or three Livings from the making of such Lease and not from the day of the date or from the date as has been said and this must be of Lands usually demised and the accustomed Rent or more must be reserved with all the other qualifications mentioned in the beginning of this Chapter And by the Statute of 18 Eliz. 18 El. c. 11. they are restrained to make any concurrent Leases till within three years of the end of the former Terms that are in being I shall now shew the Reader what things are demisable within these several Statutes and what Reservations are good and in what cases the Acceptance of Rent by the Successor will make a Lease good that was voidable within these Laws and the several qualifications mentioned in the beginning of this Chapter What Leases shall be good Smalls Case M. 4. Jac. B. R. Former in being One Small being possessed of the mannor of Padington by a Lease from a Bishop for a Term of years the Bishop made a Lease to another for three Lives and before Livery the Tenant surrendred his former Term and it was held that the Surrender was made in due time and the second Lease good A Prebend had usually been leased excepting the Crab-trees and the Prebendary made a new Lease without excepting the Crab-trees Cro. Jac. 458. 3 Bulst 290. More in the new Leases than the old reserving the antient Rent with other due Circumstances and this Lease was held void against the Successor by reason of the adding of the Crab-trees It hath been adjudged Co. 5.15 a⸫ Next Avoidance not demisable That a Bishop Dean c. cannot grant the next avoidance of an Advowson nor any Rent-charge out of the possessions of the Church but the same is void within the restrictive Acts before-mentioned though these cannot be said any of the possessions of their Churches It was also resolved Co. 5.15 a⸫ Charges void that where an Arch-deacon made a Lease for three Lives warranted by the Statutes before mentioned and the Lessee granted a Rent-charge for a hundred years which was confirmed by the Bishop Dean and Chapter that notwithstanding the same was void against the Successor within the Stat. of 13 Eliz. cap. 10. If a Writ of Annuity should be brought against a Parson Co. 5 14.b⸪ c. pretending the same due by Prescription and although the Parson pray in aid of the Patron and Ordinary and upon a Plea pleaded by them the Plaintiff obtains a Verdict and Judgment and all this by practice and fraud to charge the Glebe it is void against the Successor for these Statutes being made for the benefit of the Church advance of Religion and Hospitality and to avoid Dilapidations 19 Ass p. 9. shall always have a favourable Construction It is regularly true Acceptance of Rent where it shall bind that where the Wife issues in tail or Successor accepts the Rent after the death of the husband Tenant in tail or Predecessor upon a void Lease made by the Husband Tenant in tail or Predecessor that such Acceptance will not affirm the Lease but this Rule must be understood of such a Lease as is void ipso facto without entry or any other Ceremony and therefore if a Parson Vicar or Prebend c. make a Lease not warrantable by the Statutes for twenty one years rendring of Rent and dyes Co. 3 65. a. 37 H. 6. 3 4. 11 E. 3. Fitz. Abbot 9. 8 H. 519. here no Acceptance of Rent by the Successor c. will affirm this Lease because the same was void without Entry or other Ceremony but if a Parson Vicar or Prebend make a lease not warrantable within the before mentioned Statutes for life or lives reserving Rent and dye and the Successor before Entry acccept the Rent this Lease shall bind him for the time for this being an Estate of Freehold could not be void before entry But if a Bishop Abbot or Prior Dyer
the prohibition or discharge the rule But if the matter suggested be a good ground for a prohibition but is in it self false or doubtful the Defendant in the prohibition may demand a declaration of the Plaintiffs Attorny which is grounded upon a supposed attachment for not obeying the prohibition to which the Defendant may plead as Councel shall advise him and Traverse and put in issue the matter of the said suggestion or such other matter as Councel shall advise which is to be tryed by a Jury of the Country if it pass with the Plaintiff then is the prohibition become peremptory but if the Verdict pass for the Defendant regularly a consultation is awarded that is a Writ directed to the Judg of the Spiritual Court authorising him to proceed notwithstanding the prohibition Now by a Statute made in the 50 E. Stat. 50 E. 3. cap. 4. Where a Prohibition was be had after Consultation 3. it is enacted That where a consultation is once duly granted upon a prohibition made to the Judg of Holy Church that the same Judg may proceed in the Cause by virtue of the same consultation notwithstanding any other prohibition thereupon to be delivered provided always that the matter in the Libel of the said Cause be not ingrossed enlarged otherwise changed But this Statute has been several times held to extend to such Causes only where consultations are judicially granted upon examination of the Cause Jones 231. Cro. Car. 208. Poph. 159 c. and not where they pass of course as for want of proof of a suggestion or upon non suit for want of prosecution or such like Sometimes the Court grants a consultation sub modo Co. 5.68 a⸫ Co. 12. Rep. 44⸫ Consultations sub modo as where the matter of the Libel is in the disjunctive and as to one part the Court has Jurisdiction and to the other not there the Court may grant a consultation as to that part that the Spiritual Court has Jurisdiction of and let the prohibition stand as to the other Or a consultation may be granted Sommers vers Sir Rich. Bulkeley T. 32 El. B.R. Poph. 58. Hob. 179. How the sin Months to prove a Suggestion is to be accounted Co 5.68 a⸫ Where no Consultation shall be granted upon a Verdict for the Defendant Hob 300⸪ so that the Spiritual Court allow such plea or such proof Note that the six Months for the proof of the suggestion is according to the Kalender and not twenty eight days to the Month. And note in the cases before put the prohibition shall be general and the consultation special quoad c. And it is taken for a rule in Sir Henry Hobarts reports that if a prohibition be faulty yet the Defendant shall never have a consultation if it appear to the Court that the suit in the Ecclesiastical Court was not well grounded And therefore where one sued for the Tithe Corn of sixty Acres of Land Dyer 171. p. 5 6. and the Defendant suggested it was barren Ground and paid no Tithe and prayd and had a prohibition and the Jury found that thirty Acres of it were so and that the other thirty were barren but had paid Tithe Wool and Lamb and a consultation denied because it appeared the Plaintiff had no cause to sue for Tithe Corn. So in a prohibition it was suggested More 911 Austen vers Pigot Cro. El. 736. that the Person had twenty Acres of Land and ten Acres of Wood in discharge of all Tithes and the proof was that he had twenty Acres of Land only and a consultation denied because it appeared he had no cause of suit Regularly a prohibition ought not to be granted after sentence Prohibition after Sentence Hob. 97. Noy 70. Winch 8. Cro. El 595. unless it appear the sentence were obtained in the vacation or by surprise so that the party had not time to pray it sooner or upon matter arising after the sentence Hob. 67⸫ and the granting or not granting rests much in the discretion of the Court. And so sometimes upon new matter arising after a consultation a prohibition may be granted After Consultation notwithstanding the aforesaid Statute of 50 E. 3. as where the Spiritual Court after consultation proceeds to try matter determinable only at Law Hob. 286⸪ or if after a consultation the Spiritual Court will make an unjust decree as to award treble damages Hughes 245. Hill 11. Jac. C.B. Baldum vers Geery and so in all cases if the Spiritual Judg will proceed illegally and against the Common Law after consultation a new prohibition may thereupon be obtained but not upon any matter alledged in the Libel Prohibitions of themselves are excellent things The virtue and vices of Prohibitions where they are used upon just legal and true grounds and have often avoided the usurpations of the Popes and Spiritual Courts but by the corruption of these later times they are grown very grievous to the Clergy being too oft granted upon feigned and untrue suggestions which it is impossible the Judges should foresee without the Spirit of Prophecy And I think I may presume to say that where one was granted before Queen Elizabeths time there have been a hundred granted in this last Age and they are a very great delay and charge to the Clergy and it were well in my poor Judgment if the Reverend Judges would think of some way to restrain them or to make them pay well for their delay by making the Plaintiff enter into recognizance to pay such costs as the Court out of which they issue should award in case they should not prove their suggestion in convenient time or some such other course as they in their great wisdom shall think just and meet And so having done with the first manner of determining the right of Tithes at the Common Law I shall proceed to the second which is by Writ of Right of Advowson to which likewise belongs the Writ of Judicavit which in it self is no other but a meer prohibition to the Ecclesiastical Judg and first of the Judicavit There have been some opinions that the Writ of Judicavit is grounded upon the Statute of Circumspecte Agatis Judicavit at Common Law and Articuli Cleri cap. 2. But it is very clear this Writ lay at Common Law and it appears in our Books that it was the opinion of some learned Judges that it lay in all cases where the right of Patronage might come in dispute 38 H 6.20 a. per mode 4 E. 3.27 b. per Markham 2 Inst 364. Lay for any Tithes Bracton l. 5. c. 4.402 b⸪ and of this opinion Sir Edward Coke seems to be And Bracton a Learned Judg who wrote in the time of H. 3. hath the very Writ in his Book which was long before the Statutes abovementioned and he fays that this Writ lies si contentio fuerit inter Rectores de aliquibus decimis quae