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
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
shillings eight pence for the Admittance of a Copyholder in Fee-simple upon a Surrender made For this is not like to a voluntary Grant as when the Copyholder hath but an Estate for life and dieth Or if he hath an Estate in Fee-simple and committeth Felony there Arbitrio Dom. res estimari debet but when the Lord is compellable to admit him to whose use the Surrender is And when Cestui que use is admitted he shall be in by him who made the Surrender and the Lord is but an Instrument to present the same And therefore in such Case the value of two years for such an Admittance is unreasonable especially when the value of the Cottage and one acre of Pasture is a Rack at fifty three shillings by the year 5. It was resolved That the Surjoynder is no more then what the Law saith For in this Case in the Iudgment of the Law the Fine is unreasonable and therefore the same is but ex abundanti and now the Court ought to judge upon the whole speciall matter And for the Causes aforesaid Iudgment was given for the Plaintiff And Coke chief Iustice said in this Case That where the usage of the Court of Admiralty is to amerce the Defendant for his default by his discretion as it appeareth in 19 H. 6. 7. That if the Amerciament be outrageous and excessive the same shall not bind the party and if it be excessive or not it shall be determined in the Court in which the Action shall be brought for the levying of it And the Writ of Account is against the Bayliff or Guardian Quod reddat ei rationabilem Computum de exitibus Manerii And the Law requireth a thing which is reasonable and no excesse or extremity in any thing II. Mich. 6 Jacobi in the Common Pleas. Porter and Rochesters Case THis Term Lewis and Rochester who dwelt in Essex within the The Statute of 23 H 8. of citing out of Dioces Dioces of London were sued for substraction of Tithes growing in B. within the County of Essex by Porter in the Court of the Arches of the Bishop of Canterbury in London And the Case was That the Archbishop of Canterbury hath a peculiar Iurisdiction of fourteen Parishes called a Deanry exempted from the Authority of the Bishop of London whereof the Parish of S. Mary de Arcubus is the Chief And the Court is called the Arches because the Court is holden there And a great question was moved If in the said Court of Arches holden in London within his Peculiar he might cite any dwelling in Essex for substraction of Tithes growing in Essex Or if he be prohibited by the Statute of the twenty third year of King Henry the eighth cap. 9. And after that the matter was well debated as well by Councell at the Bar as by Dr. Ferrard Dr. James and others in open Court and lastly by all the Iustices of the Common Pleas A Prohibition was granted to the Court of Arches And in this Case divers Points were resolved by the Court. 1. That all Acts of Parliament made by the King Lords and Commons of Parliament are parcell of the Laws of England and therefore shall be expounded by the Iudges of the Laws of England and not by the Civilians and Commonists although the Acts concern Ecclesiasticall and Spirituall Iurisdiction And therefore the Act of 2 H. 4. cap. 15. by which in effect it is enacted Quod nullus teneat doceat informet c. clam vel publice aliquam nefandam opinionem contrariam sidei Catholicae seu determinationi Ecclesiae sacro-sanctae nec de hujusmodi secta nephandis Doctrinis Conventiculas faciat And that in such Cases the Diocessan might arrest and imprison such Offender c. And in 10 H. 7. the Bishop of London commanded one to be imprisoned because that the Plaintiff said that he ought not to pay his Tithes to his Curat and the party so imprisoned brought an Action of False Imprisonment against those who arrested him by the commandment of the Bishop and there the matter is well argued What words are within the said Statute and what without the Statute So upon the same Statute it was resolved in 5 E. 4. in Keysars case in the Kings Bench which you may see in my Book of Presidents And so the Statutes of Articuli Cleri de Prohibitione regia De Circumspecte agatis of 2 E. 6. cap. 13. and all other Acts of Parliament concerning Spirituall Causes have alwaies been expounded by the Iudges of the Common Law as it was adjudged in Woods Case Pasch 29 Eliz. in my Notes fol. 22. So the Statute of 21 H. 8. cap. 13. hath been expounded by the Iudges of the Realm concerning Pluralities and the having of two Benefices Common Laws and Dispensations see 7 Eliz. Dyer 233. The Kings Courts shall adjudge of Dispensations and Commendams See also 17 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dyer 327 18 Eliz. Dyer 352. and 347. 22 Eliz. Dyer 377. Construction of the Statute cap. 12. Smiths Case concerning Subscription which is a meer Spirituall thing Also it appeareth by 22 Eliz. Dyer 377. That for want of subscription the Church was alwaies void by the said Act of 23 Eliz. and yet the Civilians say that there ought to be a Sentence Declaratorie although that the Act maketh it void 2. It was resolved by Coke chief Iustice Warberton Daniel and Foster Iustices That the Archbishop of Canterbury is restrained by the Act of 23 H. 8. cap. 9. to cite any one out of his own Diocesse or his Peculiar Iurisdiction although that he holdeth his Court of Arches within London And first it was objected That the Title of the Act is An Act that no person shall be cited out of the Diocess where he or she dwelleth except in certain Cases And here the Archbishop doth not cite the said Party dwelling in Essex out of the Diocesse of London for he holdeth his Court of Arches within London 2. The Preamble of the Act is Where a great number of the Kings Subjects dwelling in divers Diocesses c. And here he doth not dwell in divers Diocesses 3. Far out of the Diocesse where such men c. dwell and here he doth not dwell far out c. 4. The body of the Act is No manner of person shall be cited before any Ordinance c. out of the Diocesse or peculiar Iurisdiction where the person shall be inhabiting c. And here he was not cited out of the Dioces of London To which it was answered and resolved That the same was prohibited by the said Act for divers Causes 1. As to all the said Objections One answer makes an end of them all For Diocesis dicitur distinctio vel divisio sive gubernatio quae divisa diversa est ab Ecclesia alterius Episcopatus Commissa Gubernatio in unius and is derived a Diâ— quod est duo electio id est
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
certain Lands in Hetherset and Windham in Norfolk and doth not say in two parts in three parts to be divided and yet it was good as well in the Declaration as in the Writ for without question the Writ is good de duabus partibus generally and so is the Register See 4 E. 3. 162. 2 E. 3. 31. 2 Assis 1. 10 Assis 12. 10 E. 3. 511. 11 Ass 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appeareth that by the intendment and construction of the Law when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part not divided As if two parts are demanded there remains a third part and when three parts are divided three remains a fourth part c. But when any demand is of other parts in other form there he ought to shew the same specialty as if one demandeth three parts of five parts or four parts of six c. And according to this difference it was so resolved in Jourdens Case in the Kings-Bench and accordingly Iudgment was given in this Term in the Case at Bar. XXVI Mich. 7 Jacobi Regis In the Common-Pleas Muttons Case AN Action upon the Case was brought against Mutton for calling of the Plaintiff Sorcerer and Inchantor who pleaded Not-guilty and it was found against him to the damages of 6 d. And it was holden by the whole Court in the Common-Pleas that no Action lieth for the said words for Sortilegium est rei futuri per sortes exploratio Et Sortilegus sive Sortilegista est qui per sortes futura praenunciat Inchauntry est verbis aut rebus adjunctis aliquid praeter naturam moliri whereof the Poet saith Carminibus Circes socios mutavit Ulyssis See 45 E. 3. 17. One was taken in Southwark with the Head and Visage of a Dead man and with a Book of Sorcery in his Mail and he was brought into the Kings-Bench before Knevet Iustice but no Indictment was framed against him for which the Clarks made him swear that he should never after commit any Sorcery and he was sent to prison and the Head and the Book were burned at Tuthill at the charges of the Prisoner And the ancient Law was as it appeareth by Britton that those who were attainted of Sorcery were burned but the Law is not such at this day but he who is convicted of such imposture and deceit shall be fined and imprisoned And it was said that it was adjudged That if one calleth another Witch that an Action will not lie for it is too general Et dicitur Latine Venefica But if one saith She is a Witch and hath bewitched such a one to death an Action upon the Case lieth if in truth he be dead Conjuration is derived of these words Con and juro Et propria dicitur quando multi in alicujus pernitiem jurant And in the Statute of 5 Eliz. cap. 16. it is taken for Invocation of any evil and wicked Spirits i. est conjurare verbis conceptis aliquos malos iniquos spiritus the same is made Felony But Witchcraft Inchantment Charm or Sorcery is not felony if not by them any person be killed or dyeth So that Conjuration est verbis conceptis compellere malos iniquos spiritus aliquod facere vel dicere c. But a Witch who works any thing by any evil spirit doth not make any Conjuration or Invocation by any powerful names of the Devil but the wicked spirit comes to her familiarly and therefore is called a Familiar But if a man be called a Conjurer or a Witch he shall not have any Action upon the Case unless that he saith That he is a Conjurer of the Devil or of any evil or wicked spirit or that one is a Witch and that she hath bewitched any one to death as is before said And note that the first Statute which was made against Conjuration Witchcraft Sorcery and Inchantment was the Act of 33 H. 8. cap. 8. and by it they were Felony in certain cases special but that Act was repealed by the Statute of 1 E. 6. cap. 12. XXVII Mich. Term 7 Jacobi Regis In the Court of Wards Sir Allen Percies Case SIr John Fitz and Bridget his Wife being Tenants for life of a Tenement called Ramshams the remainder to Sir John Fitz in tail the remainder to Bridget in tail the Reversion to Sir John and his Heirs Sir John and Bridget his Wife by Indenture demised the said Tenement to William Sprey for divers years yet to come except all Trees of Timber Oaks and Ashes and liberty to carry them away rendering Rent and afterwards Sir John dyed having issue Mary his daughter now the Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for seven years The Question was Whether Sir Allen having the immediate inheritance in the right of his Wife expoctant upon the Estate for the life of Bridget and also having the possession by the said Demise might cut down the Timber Trees Oaks and Ashes And it was objected that he might well do it for it was resolved in Saunders Case in the fifth part of my Reports fo 12. That if Lessee for years or for life assigns over his term or Estate unto another excepting the Mines or the Trees or the Clay c. that the exception is voyd because that he cannot except that which he cannot lawfully take and which doth not belong unto him by the Law But it was answered and resolved by the two chief Iustices and the chief Baron That in the Case at Bar the Exception was good without question because that he who hath the Inheritance joyns in the Lease with the Lessee for life And it was further resolved That if Tenant for life Leaseth for years excepting the Timber Trees the same is lawfully and wisely done for otherwise if the Lessee or Assignee cutteth down the Trees the Tenant for life should be punished in Waste and should not have any remedy against the Lessee for years and also if he demiseth the Land without exception he who hath the immediate Estate of Inheritance by the assent of the Lessee may cut down all the Timber Trees which when the term ended all should be wasted and then the Tenant for life should not have the Boots which the Law giveth him nor the pawnage and other profits of the said Trees which he lawfully might take But when Tenant for life upon his Lease excepteth the Trees if they be cut down by the Lessor the Lessee or Assignee shall have an Action of Trespass Quare vi armis and shall recover damages according to his loss And this case is not like to the said case of Saunders which was affirmed to be good Law for there the Lessee assigned over his whole interest and therefore could not except the Mines
Trees and Clay c. which he had not but as things annexed to the Land and therefore he could not have them when he had departed with his whole interest nor he could not take them either for Reparations or otherwise But when Tenant for life Leaseth for years except the Timber Trees the same remaineth yet annexed to his Freehold and he may command the Lessee to take them for necessary Reparations of the Houses And in the said case of Saunders a Iudgment is cited between Foster and Miles Plaintiffs and Spencer and Bourd Defendants That where Lessee for years assigns over his term except the Trees that Waste in such case shal be brought against the Assignee but in this case without question Waste lieth against the Tenant for life and so there is a difference c. XXVIII Mich. Term 7 Jacobi Regis In the Court of Wards Hulmes Case THe King in the right of his Dutchy of Lancaster Lord Richard Hulm seised of the Mannor of Male in the County of Lancaster holden of the King as of his Dutchy by Knights service Mesne and Robert Male seised of Lands in Male holden of the Mesn as of his said Mannor by Knights service Tenant Richard Hulm dyed after whose death 31 Hen. the eight it was found that he dyed seised of the said Menalty and that the same descended to Edward his Son and Heir within age and found the Tenure aforesaid c. And during the time that he was within age Robert Male the Tenant dyed after which in anno 35 H. 8. it was found by Office That Robert Male dyed seised of the said Tenancy peravail and that the same descended to Richard his Son and Heir within age and that the said Tenancy was holden of the King as of his said Dutchy by Knights service whereas in truth the same was holden of Edward Hulm then in Ward of the King as of his Menalty for which the King seised the Ward of the Heir of the Tenant And afterwards anno quarto Jacobi Regis that now is after the death of Richard Male who was lineal Heir of the said Robert Male by another Office it was found That the said Richard dyed seised of the said Tenancy and held the same of the King as of his Dutchy by Knights service his Heir within age whereupon Richard Hulm Cosin and Heir of the said Richard Hulm had preferred a Bill to be admitted to his Traverse of the said Office found in quarto Jacobi Regis And the Question was Whether the Office found in 35 H. 8. be any estoppel to the said Hulm to Traverse the said last Office or if that the said Hulm should be driven first to Traverse the Office of 35 H. 8. And it was objected That he ought first to Traverse the Office of 35 H. 8. as in the Case of 26 E. 3. 65. That if two Fines be levyed of Lands in ancient Demesn the Lord of whom the Land is holden ought to have a Writ of Deceit to reverse the first Fine and in that the second Fine shall not be a Bar And that the first Office shall stand as long as the same remains in force To which it was answered and resolved by the two Chief Iustices and the Chief Baron and the Court of Wards That the finding of an Office is not any estoppel for that is but an enquest of Office and the party grieved shall have a Traverse to it as it hath been confessed and therefore without question the same is no estoppel But when an Office is found falsly that Land is holden of the King by Knights service in capite or of the King himself in Socage if the Heir sueth a general Livery now it is holden in 46 E. 3. 12. by Mowbray and Persey that he shall not after add that the Land is not holden of the King but that is not any estoppel to the Heir himself who sueth the Livery and shall not conclude his Heir for so saith Mowbray himself expresly in 44 Assis pl. 35. That an Estoppel by suing of Livery shall estop onely himself the Heir during his life And in 1 H. 4. 6. b. there the case is put of express confession and suing of Livery by the issue in tayl upon a false Office and there it is holden that the Iurors upon a new Diem clausit extremum after the death of such special Heir are at large according to their conscience to finde that the Land is not holden c. for they are sworn ad veritatem dicendum and their finding is called veredictum quasi dictum veritatis which reason also shall serve when the Heir in Fee-simple sueth Livery upon a false Office and the Iurors after his death ought to finde according to the truth So it is said 33 H. 6. 7. by Laicon that if two sisters be found Heirs whereof the one is a Bastard if they joyn in a Suit of Livery she which joyneth with the Bastard in the Livery shall not alledg Bastardy in the other but there is no Book that saith that the Estoppel shall endure longer then during his life and when Livery is sued by a special Heir the force and effect of the Livery is executed and determined by his death and by that the Estoppel is expired with the death of the Heir but that is to be intended of a general Livery but a special Livery shall not conclude one But as it is expressed the words of a general Livery are When the Heir is found of full age Rex Escheatori c. Scias quod cepimus homigium I. filii haeredis B. defuncti de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus c. And when the Heir was in Ward at his full age the Writ of Livery shall say Rex c. Quia I. filius haeres B. defuncti qui de nobis tenuit in capite aetatem suam coram te sufficienter probavit c. Ceperimus homagium ipsius I. de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus ut supra c. Which Writ is the Suit of the Heir and therefore although that all the words of the Writ are the words of the King as all the Writs of the King are and although that the Livery be general de omnibus terris tenementis de quibus B. pater I. tenuit de nobis in capite die quo obiit without direct affirmation that any Mannor in particular is holden in capite and notwithstanding that the same is not at the prosecution of the Kings Writ and no Iudgment upon it yet because the general Livery is founded upon the Office and by the Office it was found That divers Lands or
the Rule of the Court is Because it was an usage only in that Town and not in the Towns that is in the Country adjoyning he was put to answer So as by the same it appeareth that a Custome was not good in a particular Town which perhaps might be good and of force in a Country c. See 40 Ass 21. and 27 39 E. 3. 2. A Custome within a Town that an Infant c. might alien is not good But yet such a Custome within Kent hath often times been adjudged to be good See 7 H. 6. 26. b. 16 E. 2. Prescription 53. Dyer 363. 22 H. 6. 14. 21 E. 4. 15. and 45 Ass 8. See Doctor and Student lib. 2. cap. 55. A partciular Country may prescribe to pay no Tithes for Corn Hay and other things but that is with this caution so as the Minister hath sufficient portion besides to maintain him to celebrate the Divine Service And fol. 172. It is holden That where Tithes have not been paid of under-woods under twenty years growth that no Tithes shall be paid for the same because that they do not renew nor increase from yeare to year so as they are not due to the Parson but by Custome And he saith fol. 174. That such a Custome of a whole Country that no Tithes of a Lordship shall be paid is good and it is to be observed that in all Libells for Tithes of Woods they alledge a prescription to have Tithes of them But the Court would advise whether such a Custome for a Town or a Country should be good But in ancient times The Parishioners have given or procured to the Parson a Wood or other Lands c. to have and to hold to him and his Successors in satisfafaction of all Tithes of Wood in the same Parish and the Parson is now seised of the same Wood and that without question is a good discharge of his Tithes and that in such case if he sueth for Tithes of Wood a Prohibition lieth And therefore it hath been said now of late That such opinions were new and without any antiquity unto the great prejudice of the Church I will cite you an ancient Iudgment many years past Mich. 25 H. 3. Wilts Rot. 5. before the King at Westminster Samson Foliet brought an Attaint upon a Prohibition against Thomas Parson of Swynden because he sued him in the Spirituall Court for a Lay Fee of the said Sampson in Draycot contrary to the Kings Prohibition c. The Defendant pleaded Quod Coram Judicibus Delegatis petiit de eodem Decimas foeni de quodam prato ipsius Samsonis in Walcot unde est in possessione per sententiam Judicum suorum fuit antequam Prohibitio Dom. Regis ad eum pervenerit quod Pratum praedict est in Walcot unde ipse est Persona non in Draycot To which the said Samson replyed and said Quod Antecessores sui antiquitus dederunt Duas acras prati Ecclesiae de Draycot pro decimis foeni quam praedict Thomas modo petit in eodem prato quas quidem duas acras prati eadem Ecclesia adhuc habet semper hucusque habuit unde videtur ei quod illud quod praedict Thomas ultra petit est de laico feodo suo dicit quod pratum illud in quo idem Thomas petit Decimas est in Draycot sicut Breve dicit non in Walcot de hoc ponit se super Patriam And the Iury found Quod praedict Thomas Persona de Swyndon secutus fuit placita in Curia Christianitatis de Laico feodo praedict Samsonis contra Prohibitionem Dom. Regis petendo ab ipso Decimas foeni de quodam prato ipsius Samsonis in Draycot unde Antecessores sui antiquitus dederunt Ecclesiae de Draycot duas acras prati pro Decima faeni quam praedict Thomas modo petit quas eadem Ecclesia adhuc habet semper hucusque habuit c. Et quod Pratum praedict in quo idem Thomas petiit Decimas est in Draycot non in Walcot c. Ideo Consideratum est quod praedict Thomas sit inde in misericord reddat praedi Samsoni 20. Marcas quas versus eum pro Damnis c. Which ancient Iudgment I have recited at large because that the same agrees with the Rule and reason of the Law continued untill this day For Iudgments or Presidents in the time of Ed. 2. E. 1. H. 3. John R. 1. and more ancient are not Authorities or Presidents to be now followed unlesse that they concur and agree with the Law and common experience and practice at this day for many Acts of Parliaments and some of them not extant have changed the ancient Laws in divers Cases and Desuetudo hath antiquated and time and Custome hath taken away divers others So as the Rule is good Quod Judiciis posterioribus sides est aâ—hibenda Et a Communi observantia non est recedendum There are two points adjudged by the said Record 1. That satisfaction may be given in discharge of payment of Tithes And if the Successor of the Parson enjoyeth the thing given in satisfaction of the Tithes and sueth for Tithes in kind he shall have a Prohibition because that he chargeth his Lay Fee with Tithes which is discharged of them By which it appeareth that Tithes cannot be discharged and altogether taken away and extinct And herewith agreeth the Register which is the most ancient Book of the Law fol. 38. Rex c. tali Judici c. saltem Monstravit nobis A. tenens quandam partem Manerii de D quod licet E. nuper Dominus Manerii praedict per quoddam scriptum Indentat dedisset concessisset F. nuper Personae Ecclesiae de D. quatuor acras terrae cum pertin in eodem Manerio Habend tenend eidem F. successoribus suis Personae Ecclesiae praedict in perpetuum Et eidem F. per praedictum scriptum de assensu voluntate Episcopi Lincoln Diocesani loci praedict J. tunc Patroni Ecclesiae praedict concessit pro se successoribus suis quod idem E. haeredes assignati sui essent quieti de Decimis vitulorum c. in Manerio praedict pro praedict quatuor acris sibi datis c. Et tamen nunc Persona Ecclesiae praedict tenens praedict quatuor acras terrae praedict praedict A. assignato praedict E. super decimam hujusmodi vitulorum c. in eodem Manerio sibi praesentand trahit in placitum coram c. in Curia Christianitatis c. Et quia discussio hujusmodi Donationis de laico feodo in regno nostro in Curia nostra non alibi tractari fieri debet vobis prohibemus Quod placitum aliquod laicum feodum in Regno nostro non teneatis in Curia Christianitatis nec quicquam in hac parte quod in enervationem dicti scripti aut Donationis concessionis praedict quae in
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
the plea for the same is no part of the suggestion which onely is the substance of the plea and therefore the Modus Decimandi is proved by two Witnesses according to the Statute of 2 E. 6. cap. 13. and not the refusal which proveth that the Modus Decimandi is onely the matter of the suggestion and not the refusal 5. All the said five matters of Discharge of Tythes mentioned in the said Branch of the Act of 2 E. 6. being contained within a suggestion ought to be proved by two Witnesses and so have been always from the time of the making of the said Act and therefore the Statute of 2 E. 6. clearly intended that Prohibitions should be granted in such causes 6. Although that they would allow bona fide de Modo Decimandi without refusal yet if the Parson sueth there for Tythes in kinde when the Modus is proved the same being expresly prohibited by the Act of 2 E. 6. a Prohibition lieth although the Modus be spiritual as appeareth by the said Book of 4 E. 4. 37. and other the Cases aforesaid And afterwards in the third day of debate of this case before his gracious Majesty Dr. Bennet and Dr. Martin had reserved divers consultations granted in Causa Modi Decimandi thinking that those would make a great impression in the Opinion of the King and thereupon they said That Consultations were the Iudgments of Courts had upon deliberation whereas Prohibitions were onely granted upon surmises And they shewed four Presidents One where three joyntly sued a Prohibition in the case of Modo Decimandi and the Consultation saith Pro eo quod suggestio materiaque in eodem contenta minus sufficiens in Lege existit c. 2. Another in Causa Modo Decimandi to be payd to the Parson or Vicar 3. Where the Parson sued for Tythes in kinde and the Defendant alledged Modus Decimandi to be payd to the Vicar The fourth where the Parson libelled for Tythe Wool and the Defendant alledged a custom to reap corn and to make it into sheaves and to set forth the tenth sheaf at his charges and likewise of Hay to sever it from the nine cocks at his charge in full satisfaction of the Tythes of the Corn Hay and Wool To which I answered and humbly desired the Kings Majesty to observe that these have been reserved for the last and center point of their proof And by them your Majesty shall observe these things 1. That the Kings Courts do them Iustice when with their consciences and oaths they can 2. That all the said Cases are clear in the Iudgment of those who are learned in the Laws that Consultation ought by the Law to be granted For as unto the first president the case upon their own shewing appeareth to be Three persons joyned in one Prohibition for three several parcels of Land each of which had a several manner of Tything and for that cause they could not joyn when their interests were several and therefore a Consultation was granted As to the second president The manner of Tything was alledged to be payd to the Parson or Vicar which was altogether uncertain As to the third president The Modus never came in debate but whether the Tythes did belong to the Parson or Vicar which being betwixt two spiritual persons the Ecclesiastical Court shall have Iurisdiction and therewith agreeth 38 E. 3. 6. cited before by Bacon and also there the Prior was of the Order of the Cistertians for if the Tythes originally belonged to the Parson any recompence for them shall not bar the Parson As unto the last president the same was upon the matter of a Custom of a Modus Decimandi for Wool for to pay the Tythe of Corn or Hay in kinde in satisfaction of Corn Hay and Wool cannot be a satisfaction for the Wool for the other two were due of common right And all this appeareth in the Consultations themselves which they shew but understand not To which the Bishop of London said that the words of the Consultation were Quod suggestio praedicta materiaque in eadem contenta minus sufficiens in Lege existet c. so as materia cannot be referred to form and therefore it ought to extend to the Modus Decimandi To which I answered That when the matter is insufficiently or uncertainly alledged the matter it self faileth for matter ought to be alledged in a good sentence and although the matter be in truth sufficient yet if it were insufficiently alledged the plea wanteth matter And the Lord Treasurer said openly to them that he admired that they would alledg such things which made more against them then any thing which had been said And when the King relied upon the said Prohibition in the Register when Land is given in discharge of Tythes the Lord Chancellor said that that was not like to this case for there by the gift of the Land in discharge of Tythes the Tythes were actually discharged but in the case De Modo Decimandi an annual sum is payd for the Tythes and the Land remains charged with the Tythes but ought to be discharged by plea de Modo Decimandi All which was utterly denyed by me for the Land was as absolutely discharged of the Tythes in casu de Modo Decimandi when an annual sum ought to be payd as where Land is given For all the Records and presidents of Prohibition in such cases are That such a sum had been always c. payd in plenam contentationem satisfactionem exonerationem omnium singularium Decimarum c. And although that the sum be not payd yet the Parson cannot sue for Tythes in kind but for the mony for as it hath been said before the Custom and the said Acts of Parliament where there is a lawful manner of Tything hath discharged the Lands from Tythes in kinde and prohibited that no suit shall be for them And although that now as it hath been said the Parsons c. may sue in the Spiritual Court pro Modo Decimandi yet without question at the first the annual payment of mony was as Temporal as annual profits of Lands were All which the King heard with much patience And the Lord Chancellor answered not to that which I had answered him in c. And after that his most excellent Majesty with all his Councel had for three days together heard the allegations on both sides He said That he would maintain the Law of England and that his Iudges should have as great respect from all his Subjects as their predecessors had had And for the matter he said That for any thing that had been said on the part of the Clergy that he was not satisfied and advised us his Iudges to confer amongst our selves and that nothing be encroached upon the Ecclesiastical Iurisdiction and that they keep themselves within their lawful Iurisdiction without unjust vexation and molestation done to his Subjects and without delay or hindering
the Feoffee and another is not any new thing but the pernancy of the old profits of the Land which well may be limited to the Feoffee and another joyntly But if the use had been onely limited to the Feoffee and his Heirs there because there is not any limitation to another person nec in praesenti nec in futuro he shall be in by force of the Feoffment And it was resolved That Ioynt-tenants might be seised to an use although that they come to it at several times as if a man maketh a Feoffment in Fee to the use of himself and to such a woman which he shall after marry for term of their lives or in tayl or in fee in this case if after he marryeth a Wife she shall take joyntly with him although that they take the use at several times for they derive the use out of the same fountain and Freehold scil the Feoffment See 17 Eliz. Dyer 340. So if a Disseisin be had to the use of two and one of them agreeth at one time and the other at another time they shall be Ioynt-tenants but otherwise it is of Estates which pass by the common Law and therefore if a Grant be made by deed to one man for term of life the Remainder to the right Heirs of A. and B. in Fee and A. hath issue and dyeth and afterwards B. hath issue and dyeth and then the Tenant for life dyeth in that case the Heirs of A. and B. are not Ioynt-tenants nor shall joyn in a Scire facias to execute the Fine 24 E. 3. Joynder in Action 10. because that although the remainder be limited by one Fine and by joynt words yet because that by the death of A. the Remainder as unto the moyety vested in his Heir and by the death of B. the other moyety vested in his Heir at several times they cannot be Ioynt tenants But in the case of a use the Husband taketh all the use in the mean time and when he marryeth the Wife takes it by force of the Feoffment and the limitation of the use joyntly with him for there is not any fraction and several vesting by parcels as in the other case and such is the difference See 18 E. 3. 28. And upon the whole matter it was resolved That because in the principal case the Father and Son were Ioynt-tenants by the original purchase that the Son having the Land by Survivor should not be in Ward and accordingly it was so decreed XXIV Pasc 39 Eliz. Rot. 233. In the Kings-Bench Collins and Hardings Case THe Case between Collins and Harding was A man seised of Lands in Fee and also of Lands by Copy of Court Roll in Fee according to the Custom of the Mannor made one entire Demise of the Lands in Fee and of the Lands holden by Copy according to the Custom to Harding for years rendering one entire Rent and afterwards the Lessor surrendered the Copyhold Land to the use of Collins and his Heirs and at another time granted by Deed the Reversion of the Freehold Lands to Collins in Fee and Harding attorned and afterwards for the Rent behinde Collins brought an Action of Debt for the whole Rent And it was objected That the reservation of the Rent was an entire contract and by the Act of the Lessee the same cannot be apportioned and therefore if one demiseth three Acres rendering 3 s. Rent and afterwards bargaineth and selleth by Deed indented and inrolled the Reversion of one Acre the whole Rent is gone because that the Contract is entire and cannot be severed by the Act of the Lessor Also the Lessee by that shall be subject to two Fealties where he was subject but to one before As to these points it was answered and resolved That the Contract was not entire but that the same by the Act of the Lessor and the assent of the Lessee might be divided and severed for the Rent is incident to the Reversion and the Reversion is severable and by consequence the Rent also for accessorium sequitur naturam sui principalis and that cannot be severed or divided by the assent of the Lessee or express attornment or implyed by force of an Act of Parliament to which every one is a party as by force of the Statute of Inrolments or of Vses c. And as to the two Fealties to that the Lessee shall be subject although that the Rent shall be extinct for Fealty is by necessity of Law incident to the Reversion and to every part of it but the Rent shall be divided pro rata portionis and so it was adjudged And it was also adjudged That although Collins cometh to the Reversion by several Conveyances and at several times yet he might bring an Action of Debt for the whole Rent Hill 43 Eliz. Rot. 243. West and Lassels Case A man made a Lease for years of certain Lands and afterwards deviseth the Reversion of two parts to one he shall have two parts of the Rent and he may have an Action of Debt for the same and have Iudgment to recover Hill 42 Eliz. Rot. 108. in the Common-Pleas Ewer and Moyls Case The Devisee of the Reversion of part shall avow for part of the Rent and such Avowry shall be good and maintainable Note well these Cases and Iudgments for they are given upon great reason and consideration for otherwise great inconvenience would ensue if by severance of part of the Reversion the entire Rent should be lost and the opinion reported by Serjeant Bendloes in Hill 6 and 7 E. 6. to the contrary nihil valet scil That the Rent in such case shall be lost because that no contract can be apportioned which is not Law For 1. A Rent reserved upon a Lease for years is more then a Contract for it is a Rent-service 2. It is incident to the Reversion which is severable 3. Vpon recovery of part in Waste or upon entry in part for a forfeiture or upon surrender of part the Rent is apportionable 25. Note It was adjudged 19 Eliz. in the Kings-Bench That where one obtained a Prohibition upon Prescription de Modo Decimandi by payment of a certain sum of mony at a certain day upon which Issue was taken and the Iury found the Modus Decimandi by payment of the said sum but that it had been payd at another day and the Case was well debated and at the last it was resolved That no Consultation should be granted for although that the day of payment be mistaken yet it appeareth to the Court that no Tythes in kinde were due for which the suit was in the spiritual Court and the Tryal of the Custom de Modo Decimandi belongeth to the Common Law and a Consultation shall not be granted where the Spiritual Court hath not Iurisdiction of the Cause Tanfield chief Baron hath the Report of this Case XXV Mich. 7 Jacobi Regis IN an Ejectione Firmae the Writ and Declaration were of two parts of
suam c. succidit for Custom hath fixed it to his Estate against the Lord and the Copyholder in this case hath as great an interest in the Timber Trees as he hath in his Messuage which he holdeth by Copy and if the Lord breaketh or destroyeth the House without question the Copyholder shall have an Action of Trespass against his Lord Quare Domum fregit and by the same Reason for the Timber Trees which are annexed to the Land and which he may take for the Reparation of his Copyhold Messuage and without which the Messuage cannot stand Trinit 40 Eliz. Rot. 37. in the Kings-Bench between Stebbing and Grosener The custom of the Mannor of Netherhall in the County of Suffolk was that every Copyholder might lop the Pollengers upon his Copyhold pro ligno combustibili c. And the Lord of the Mannor cut down the Pollingers being upon the Plaintiffs Copy-hold upon which he brought his Action upon the case because that the lops of the Trees in such case did belong to the Copyholder and they were taken by the Lord. See Taylors case in the fourth part of my Reports 30 and 31. and see 5 H. 4 2. Guardian in Knight-service who hath Custodiam terrae shall have an Action of Trespass for cuting down the Trees against the Heir who hath the inheritance Vide 2 H. 4. 12. A Copyholder brought an Action of Trespass Quare clausum fregit arbores succidit and see 2 E. 4. 15. A Servant who is commanded to carry goods to such a place shall have an Action of Trespass or Appeal 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. It after taking the goods the owner hath his goods again yet he shall have a general Action of Trespass and upon the evidence the damages shall be mitigated so is the better Opinion in 11 H. 4. 23. That he who hath a special property of the goods at a certain time shall have a general Action of Trespass against him who hath the general property and upon the evidence damages shall be mitigated but clearly the Baylee or he who hath a special property shall have a general Action of Trespass against stranger and shall recover all in damages because that he is chargeable over See 21 H. 7. 14. b. acc And it is holden in 4 H. 7. 3. That Tenant at sufferance shall have an Action of Trespass in respect of the possession and if the Defendant plead Not-guilty but he cannot make title 30 H. 6. Trespass 10. 15 H. 7. 2. The King who hath profits of the Land by Out-lawry shall have an Action of Trespass or take goods damage-feasants 35 H. 6. 24. 30 H. 6. Tresp 10. c. Tenant at will shall have an Action of Trespass 21 H. 7. 15. and 11 H. 4. 23. If a man Bayl goods which are taken out of his possession if the Baylee recover in Trespass the same shall be a good Bar to the Baylee 5 H. 4. 2. In a Writ of Waste brought against Tenant for life and assigned the Waste in cutting down of Trees the Defendant pleaded in Bar that the Plaintiff himself cut them and Culpeper the Serjeant of the Plaintiff objected against it that it should be no Plea because the Defendant had not any thing in the Freehold no more then a meer stranger and if a stranger had cut down the same Trees he should be chargeable in Waste Also in this case we should be at a mischief if we should not recover against him for if at another time he bringeth an Action of Trespass against us he shall recover damages against us for the cutting id est for the value of the Trees and yet it was holden by the Court that the same was a good Bar And it was said by the Court that the Plaintiff was not at any mischief in this case for in as much as the Defendant shall have advantage now to discharge himself of Waste against the Plaintiff upon this matter he shall be barred for ever of his Action of Trespass scil to recover the value of the Trees which was the mischief objected by Culpeper But without question he shall have an Action of Trespass Quare clausum fregit for the Entry of the Lessor and for the cutting of the Trees but he shall not recover the value of the Trees because he is not chargeable over but for the special loss which he hath scil for the loss of the Pawnage and of the shadow of the Trees c. See Fitz. Trespass ultimo in the Abridgment And afterwards the same Term Iudgment was given on the principal case for the Plaintiff XXXIV Easter Term 8 Jacobi In the Common-Pleas THe Parishioners of St. Alphage in Canterbury by custom ought to choose the Parish-Clark whom they chose accordingly The Parson of the Parish by coulor of a new Canon made at the Convocation in the _____ year of the King that now is which is not of force to take away any Custom drew the Clark before Doctor Newman Official of the Archbishop of Canterbury to deprive him upon the point of the right of Election and for other causes and upon that it was moved at the Bar to have a Prohibition And upon the hearing of Doctor Newman and himself and his Councel a Prohibition was granted by the whole Court because the party chosen is a meer temporal man and the means of choosing of him scil the custom is also meer temporal so as the Official cannot deprive him but upon occasion the Parishoners might displace him And this Office is like to the Office of a Churchwarden who although they be chosen for two years yet for cause they may displace them as it is holden in 26 H. 8. 5. And although that the execution of the Office concerneth Divine Service yet the Office it self is meer temporal See 3 E. 3. Annuity 30. He who is Clark of a Parish is removable by the Parishioners See 18 E. 3. 27 A gift in tayl was made of the Serjanty or Clarkship of the Church of Lincoln and there adjudged that the Office is temporal and shall not be tryed in the Ecclesiastical Court but in the Kings Court And it is to be known that the deprivation of a man of a temporal Office or place is a temporal thing upon which no Appeal lyeth by the Statute of 25 H. 8. but an Assise as in 4 Eliz. Dyer 209. The President of Magdalen Colledg in Oxford was deprived of the Bishop of Winchester their Visitor He shall not have an Appeal to the Delegates for the Deprivation is temporal and not spiritual but he may have an Assise and therewith agreeth the Book of 8 Ass Siracses Case But if a Dean of a Cathedral Church of the Patronage of the King be deprived before the Commissioners of the King he may appeal to the Delegates within the said Act of 25 H. 8. For a Deanry is a spiritual promotion and not temporal and before