time of King H. 3. Ed. 3. and Ed. 4. they in the Ecclesiastical Court have not any power to intermeddle with the Precinct of Parish-Churches neither are they there to Judge what shall be said to be a mans Parish-Church And so was the Opinion of the whole Court and therefore by the Rule of the Court a Prohibition was granted 41. Touching the Reparations of a Church and who were liable thereunto this being a question coming in debate before the Judges It was Resolved by the whole Court That for and towards the Reparation of a Church the Land of all as well of Foreigners there not inhabiting as of all others is liable thereunto and this is so by the general custome of the place and this is to be raised by a Rate imposed according to the value of the Land and that in the nature of a Fifteen and this is not meerly in the Realty Williams and Yelverton Justices and Flemming Chief Justice Not the Land but the person of him who occupieth the Land is to be charged Yelverton Justice A man is chargeable for Reparations of a Church by reason of the Land and for the Ornaments in the Church by reason of his coming to Church Williams Justice and Flemming Chief Justice If the person have Land there he is chargeable for both whether he come to Church or not for that he may come to Church if he please 42. In a Prohibition the Case was this The Defendant did Libel before the Bishop of London in the Consistory Court for a Seat in the Church Sentence there passed against the Defendant whereupon he Appealed to the Arches The Court was moved for a Prohibition in regard the Title to the Seat or Pew was grounded upon a Prescription The Court answered c. As for the Title we are not here to meddle with it this being for a Seat in the Church Haughton Justice This Disposition of Pews in the Church belongs of right to the order and discretion of the Ordinary and to this purpose is the case of 8 H. 7. fo 12 and Sir William Hall's case against Ellis Doderidge Justice I moved this case in the Court of C. B. and it was for a Seat in the Church An Action there brought for Disturbance and I there cited Hall's case and 9 E. 4. fo 14. The Case of the Grave-Stone and Coat-Armor for the taking of which an Action of Trespass lies at the Common Law and therefore by the same reason an Action of Trespass should lie for such a Disturbance in a Seat of a Church but there the Judges did all of them say That they would not meddle with the deciding of such Controversies for Seats in the Church but would leave the same to them to whom more properly it belonged Croke Justice Hall's case was this where a man did build an entire Isle in the Church and was at continual charge to repair it if he be disturbed in the use of this he shall for this Disturbance have his remedy at the Common Law and so it hath been adjudged But the Judges all said We are not here to meddle with Seats in the Church Doderidge Justice This Appeal here is like unto a Writ of Error at the Common Law but it doth differ in this By the Appeal the first Judgment or Sentence is suspended but after a Writ of Error brought the first Judgment still remains until it be reversed Coke Chief Justice It was Pym's Case in the Common Bench and 8 H. 7. fo 12. that the Ecclesiastical Court hath Jurisdiction and power to dispose of Pews and Seats in the Church But if there be an Isle built by a Gentleman or by a Nobleman and he hath used to Bury there and there hath his Ensigns of Honour as a Grave-stone Coat-Armor or the like which belongs not unto the Parson if he take them the Heir may well have an Action of Trespass Otherwise it is where the same is repaired at the Common charge of the Parish there they have the disposing of them Ellis and Hall's Case remembred a Kentish Case there the Seat was repaired by him and was belonging to his Capital Messuage by Prescription and so triable at the Common Law And so where the Case is Special that the party doth wholly and solely repair the same in such a case if a Suit be there concerning such a Seat a Prohibition well lieth but not otherwise But if a Nobleman comes to dwell in the Countrey he is now within the sole order and dispose of the Ordinary for his Pew and Seat in the Church and upon the former difference was Pym's case adjudged in the C. B. in this principal Case a Prohibition was denied by the whole Court CHAP. XIII Of Churchwardens Questmen and Sidemen 1. What such are in construction of Law how the choice of them is to be made and wherein the Office doth consist 2. What Actions at Law may lie for or against them 3. Whether Actions lie for the New Churchwardens in Trespas done in time of their Predecessors 4. Certain things appertaining to the Church within the charge and office of Churchwardens to provide and preserve 5. Cases in Law touching the Election of Churchwardens 6. What Sidemen or Questmen are and their duty 7. Action at Law against Churchwardens touching Distress taken by them for money for relief of the Poor 8. A Churchwarden refusing to take the Oath of Enquiry on the 39 Articles Action thereon 9. What remedy in case the Archdeacon refuses to Swear the Church-wardens Elect. 10. The Injunctions of King Ed. 6. touching all Marriages Baptisms and Burials to be Registred in the presence of the Churchwardens 11. Whether the Release of one Churchwarden shall be a Bar to his Companion in an Ecclesiastical Suit commenced by them both 12. Prohibition where Churchwardens have pretended a Custome to chuse the Parish-Clerk 13. The like upon a Presentment by Churchwardens against one in matter more proper for a Leet than the Ecclesiastical Court to take cognizance of 14. The prevalency of Custome against a Canon in choice of a Churchwarden in reference to a Vicar and the Parishioners 15. If question be whether Lands next adjoyning unto a Church-yard shall be charged with the repairs of the Fences thereof and Custome pleaded for it in what Court cognizable 16. In Action of Account by Parishioners against Churchwardens by whom a Release of Câ—sts is pleaded but disallowed in the Ecclesiastical Court whether Prohibition lies in that case 17. Whether Churchwardens are a Corporation qualified for Lands as well as Goods to the use of the Church 18. The Churchwardens disposal of Goods belonging to the Church without the assent of the Sidemen or Vestry void 19. Churchwardens not Ecclesiastical Officers but Temporal employed in Ecclesiastical Affairs Before whom are they to Account 20. Whether Churchwardens may have Action for Trespass done to the Church in their Predecessors time 21. Whether the Parishioners by force of a
Constance there being a Contest about Precedency between the English and French Embassadours the English have these words viz. Domus Regalis Angliae Sanctam Helenam cum suo filio Constantino Magno Imperatore nato in urbe Regia Eboracensi educere comperta est The Royal House of England it is known for certain brought forth Helena with her Son Constantine the Great Emperour Born in the Royal City Eboracum Likewise the English at Basil opposing the Precedency of Castile say thus viz. Constantium illum Magnum qui Primus Imperator Christianus so are their words Licentiam dedit per universum Orbem Ecclesias constituere immensa ad hoc Conferens bona Peternae natum in Eboracensi Civitate That Constantine who being the first Christian Emperour gave leave to build Churches throughout the World was Born at Peterne in the City of York By this they mean Bederne a Colledge of Vicars there sometime serving the Quire which as also Christchurch called in Ancient Charters Ecclesia Sanctae Trinitatis in Curia Regis is verily thought to have been part of the Imperial Palace in old time which seems the more probable by what Herodian writes viz. That Severus the Emperour and his eldest Son Antoninus sate at York about Private and Common affairs and gave their Judgment in ordinary Causes as in that of Coecilia about recovery of Right of Possession The Rescript or Law of which matter is to this day preserved in the Code whereon the Learned Cuiacius of Great Britain hath made very remarkable Observations This was that Septimius Severus Emperour of Rome and Master of the World who in this Isle breathed his last and who when he saw there was nothing to be expected but Death called for the Vrn wherein he had appointed his Ashes after the Ossilegium should be put and viewing it very exactly Thou shalt hold said he the Man whom the World could not contain No wonder then that this City of so great Renown and Antiquity was adorned with an Archiepiscopal Seat above a Thousand years since as aforesaid yet it never had those high Priviledges or Pterogatives which were and are peculiar to the Archiepiscopal See of Canterbury whereof the Power next under the Crown of convening Councils and Synods is not the least Gervasius in his Chronicle de Tempore H. 2. tells us That RICHARDUS CANTUARIENSIS Archiepiscopus totius ANGLIAE Primas Apostolicae Sedis Legatus Convocato Clero ANGLIAE celebravit Concilium in Ecclesia Beati PETRI ad WESTMONASTERIUM 15. kal. Junii Dominica ante Ascentionem Domini An. 1175. In hoc Concilio ad dextram Primatis sedit Episcopus LONDONIENSIS quia inter Episcopos CANTUARIENSIS Ecclesiae Suffraganeos DECONATVS praeminet dignitate Ad sinistram sedit Episcopus WINTONIENSIS quia CANTORIS officio praecellit The Church when Disdiocesan'd by Death Translation or otherwise or quasi viduata whilst the Bishop is employed about Transmarine Negotiations in the Service of the King or Kingdom the Law takes care to provide it a Guardian quoad Jurisdictionem Spiritualem during such vacancy of the See or remote absence of the Bishop to whom Presentations may be made and by whom Institutions Admissions c. may be given and this is that Ecclesiastical Officer whether he be the Archbishop or his Vicar General or Deans and Chapters in whomsoever the Office resides him we commonly call the Guardian of the Spiritualties The Power and Jurisdiction of this Office in the Church is very Ancient and was in use before the time of King Edward the First it doth cease and determine so soon as a new Bishop is Consecrated to that See that was vacant or otherwise Translated who needs no new Consecration This Ecclesiastical Office is in being immediately upon the vacancy of an Archiepiscopal See as well as when a Bishoprick happens to be vacant Beside the Presentations Admissions Institutions c. aforesaid that this Officer is legally qualified for he may also by force of the Act of Parliament made in the Five and twentieth year of King Henry the Eighth grant Licenses Dispensations Faculties c. which together with such Instruments Rescripts and other Writings as may be granted by virtue of the said Statute may be had made done and granted under the Name and Seal of the Guardian of the Spiritualties And in case he shall refuse to give the same an effectual dispatch where by Law it may and ought to be granted in every such case the Lord Chancellor of England or Lord Keeper of the Great Seal upon Petition and Complaint thereof to him made may issue his Majesties Writ directed to such Guardian of the Spiritualties requiring him by virtue of the said Writ under a certain penalty therein limited by the said Lord Chancellor or Lord Keeper to grant the same in due form of Law otherwise and no just and reasonable cause shewed for such refusal the said penalty may be incurr'd to his Majesty and a Commission under the Great Seal issued to two such Prelates or Spiritual persons as shall be nominated by his Majesty impowring them by virtue of the said Act to grant such Licenses c. as were so refused to be granted by the Guardian c. as aforesaid The first thing in order to the Election of a Bishop in the Vacancy of any Episcopal See is and ever hath been since the time of King John the Royal Congé d'Eslire which being obtain'd the Dean and Chapter proceeds to Election It cannot legally be doubted but that the consent of the Dean is not only requisite but also necessary to the Election of a Bishop as appears by an Ancient Contest above five hundred years since between the Dean and Canons of London touching the Election of Anselme Soon after King Stephen came to the Crown he conven'd a Council at Westminster vocati sunt ad Concilium says an Historian WILLIELMVS DECANVS LVNDONIAE siuml Canonici Cum autem haberetur Tractatus de Concilio Lundoniensis Ecclesiae tunc vacantis nec in aliquem possent unanimiter convenire recesserunt à Decano Canoni corum multi citra conscientiam ejus ANSELMUM Abbatem in Episcopum Eligentes Canonici vero quos Decanus habebat secum in Mensa diebus singulis Appellaverunt nec Regis occurrerunt offensam Canonici quidem alii quia quod fecerant tam Regi quam toto Concilio videbatur iniquum Regis indignationem plurimam meruerunt quorum aliqui bonis suis spoliati sunt The Pope afterwards having on this occasion a solemn Conference with his Cardinals Albericus Hostiensis Episcopus quod sequitur pronunciavit in Publicum Quoniam Electio Canonicorum Lundoniensium citra conscientiam Assensum Decani facta fuit cujus est Officium in Eligendo Pastore suo de jure primam vocem habere Nos eam auctoritate beati Petri devocamus in irritum So that according to this Ancient President the Election
that upon such Appeal a Commission under the Great Seal shall be directed to certain persons particularly designed for that business so that from the highest Court of the Archbishop of Canterbury there lies an Appeal to this Court of Delegates Of this Subject of Appeals the Lord Coke says That an Appeal is a Natural defence which cannot be taken away by any Prince or power and in every Case generally when Sentence is given and Appeal made to the Superiour the Judge that did give the Sentence is obliged to obey the Appeal and proceed no further until the Superiour hath examined and determined the cause of Appeal Nevertheless where this Clause Appellatione remota is in the Commission the Judge that gave Sentence is not bound to obey the Appeal but may execute his Sentence and proceed further until the Appeal be received by the Superiour and an Inhibition be sent unto him For that Clause Appellatione remota hath Three notable effects 1 That the Jurisdiction of the Judge à quo is not by the Appeal suspended or stopped for he may proceed the same notwithstanding 2 That for proceeding to Execution or further process he is not punishable 3 That these things that are done by the said Judge after such Appeal cannot be said void for they cannot be reversed per viam Nullitatis But if the Appeal be just and lawful the Superiour Judge ought of right and equity to receive and admit the same and in that case he ought to reverse and revoke all mean Acts done after the said Appeal in prejudice of the Appellant At the Parliament held at Clarendon An. 10 H. 2. cap. 8. the Forms of Appeals in Causes Ecclesiastical are set down within the Realm and none to be made out of the Realm Ne quis appellat ad dominum Papam c. so that the first Article of the Statute of 25 H. 8. concerning the prohibiting of Appeals to Rome is declaratory of the ancient Law of the Realm And it is to be observed says the Lord Coke that the first attempt of any Appeal to the See of Rome out of England was by Anselme Archbishop of Canterbury in the Reign of William Rufus and yet it took no effect Touching the power and Jurisdiction of the Court of Delegates Vid. le Case Stevenson versus Wood. Trin. 10 Jac. B. R. Rot. 1491. in Bulstr Rep. par 2. wherein these Three points are specially argued 1 Whether the Judges Delegates may grant Letters of Administration 2 Whether in their person the King be represented 3 Whether the Court of Delegates may pronounce Sentence of Excommunication or not 14. The High Commission-Court in Causes Ecclesiastical was by Letters Patents and that by force and virtue of the Statute of 1 Eliz. cap. 1. the Title whereof is An Act restoring to the Crown the Ancient Jurisdiction Ecclesiastical c. the High Commissioners might if they were competent that is if they were Spiritual persons proceed to Sentence of Excommunication What the power of this Court was and whether they might in Causes Ecclesiastical proceed to Fine and Imprisonment is at large examined by the Lord Coke in the Fourth part of his Institutes where he reports the Judgment and Resolutions of the whole Court of Common Pleas thereon Pasch 9 Jac. Reg. upon frequent Conferences and mature deliberation set down in writing by the order and command of King James Likewise whom and in what Cases the Ecclesiastical Courts may examine one upon Oath or not there being a penal Law in the Case and whether the saying Quod nemo tenetur seipsum prodere be applicable thereunto Vid. Trin. 13 Jac. B. R. Burroughs Cox c. against the High Commissioners Bulstr par 3. 15. The Statutes of 24 H. 8. and 25 H. 8. do Ordain That upon certain Appeals the Sentence given shall be definitive as to any further Appeal notwithstanding which the King as Supream Governour may after such definitive Sentence grant a Commission of Review or Ad Revidendum c. Sir Ed. Coke gives two Reasons thereof 1 Because it is not restrained by the Statute 2 For that after a definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commision Ad Revidendum and what Authority the Pope here exercised claiming as Supream Head doth of right belong to the Crown and by the Statutes of 26 H. 8. cap. 1. and 1 Eliz. cap. 1. is annexed to the same Which accordingly was Resolved Trin. 39 Eliz. B. R. Hollingworth's Case In which Case Presidents to this purpose were cited in Michelot's Case 29 Eliz. in Goodman's Case and in Huet's Case 29 Eliz. Also vid. Stat. 8 Eliz. cap. 5. In the Case between Halliwell and Jervoice where a Parson sued before the Ordinary for Tithes and thence he appeals to the Audience where the Sentence is affirmed then the party appeals to the Delegates and there both Sentences are Repealed It was agreed That in such case a Commission Ad Revidendum the Sentences may issue forth but then such a Reviewing shall be final without further Appeal But if the Commissioners do not proceed to the Examination according to the Common Law they shall be restrained by a Prohibition 16. The Court of Peculiars is that which dealeth in certain Parishes lying in several Diocesses which Parishes are exempt from the Jurisdiction of the Bishops of those Diocesses and are peculiarly belonging to the Archbishop of Canterbury Within whose Province there are fifty seven such Peculiars for there are certain peculiar Jurisdictions belonging to some certain Parishes the Inhabitants whereof are exempt sometimes from the Archdeacons and sometimes from the Bishops Jurisdiction 17. If a Suit be in the Ecclesiastical Court for a Modus Decimandi if the Desendant plead payment it shall be tryed there and no Prohibition may be granted for that the Original Suit was there well commenced So if payment be pleaded in a Suit depending in the Ecclesiastical Court for any thing whereof they have the original cognizance But if a man sue for Tithes in the Ecclesiastical Court against J. S. and makes Title to them by a Lease made to him by the Parson and J. S. there also makes Title to them by a former Lease made to him by the same Parson so that the Question there is which of the said Leases shall be preferred In this case a Prohibition shall be granted for they shall not try which of the said Leases shall be preferr'd although they have cognizance of the Original for the Leases are Temporal If a man having a Parsonage Impropriate make a Lease for years of part of the Tithes by Deed and the Deed be denied in the Ecclesiastical Court and Issue taken thereon a Prohibition shall be granted If a Parson compound with his Parishioner for his Tithes and by his Deed grant them to him for a certain Sum for one year according to Agreement and after he
The Statute of 13 El. cap. 12. Ordained That the Articles agreed by the Archbishop and Bishops of both Provinces and all the Clergy in the Convocation held at London c. shall be read by the Incumbent otherwise he is ipso facto deprived Or admitting all these Requisites have had their due performance so that he is a compleat Parson to all intents and purposes of Law whatever yet he may not under pretence of this or that Custome extend the Lines of his Parsonage beyond its due limits or bounds out of an Avaricious design to advance the perquisites of his Parsonage 5. Edward Topsall Clerk Parson of St. Botolphs without Aldersgate London and the Churchwardens of the same Libelled in the Ecclesiastical Court against Sir John Ferrers and alledged that there was a Custome within the City of London and specially within that Parish That if any person being Man or Woman die within that Parish and be carried out of the Parish to be Buried elsewhere that in such case there ought to be paid to the Parson of this Parish if he or she be buried elsewhere in the Chancel so much and to the Churchwardens so much being the Sums that they alledged were by Custome payable unto them for such as were buried in their own Chancel And then alledging that the Wife of Sir John Ferrers died within the Parish and was carried away and buried in the Chancel of another Church and so demanded of him the said Sum. Whereupon for Sir John Ferrers a Prohibition was prayed by Serjeant Harris and upon debate it was granted For this Custome is against Reason That he that is no Parishioner but may pass through the Parish or lie in an Inne for a night should if he then die be forced to be Buried there or to pay as if he were and so upon the matter to pay twice for his Burial 6. The words Parsonage Church and Rectory are frequently in the Law used Synonymously and promiscuously but the word Advowson is another thing and distinct from each of them And as to some Parsonages there are certain Rents due and payable so out of some Parsonages or Rectories there are issuing certain Rents or Pensions which Pensions are not suable at the Common Law but in the Ecclesiastical Court as was said in Crocker and York's Case against Dormer against whom they had a Recovery in a Writ of Entry in the Post among other things of a yearly Rent or Pension of four Marks issuing out of the Church or Rectory of F. In which Case it was agreed by Clench and Fenner that a Pension issuing out of a Rectory is the same with the Rent of which Popham seemed to make some doubt for there being in that Case a Demand for Rent in the Disjunctive viz. a Rent or Pension he moved that the greatest difficulty in the Case was the Demand made in the Disjunctive viz. of an Annual Rent or Pension for if a Pension issuing out of a Rectory shall be said to be a thing meerly Spiritual and not to be demanded by the Common Law or meerly of another nature than the Rent it self with which it is there conjoyn'd by the word or that then it is Erroneous 7. B. brought an Action of Debt against W. upon an Obligation of 600 l. the Condition was That if W. Resign a Benefice upon Request that then the Obligation should be void And the Condition was Entered the Defendant Demurred and Judgment in B. R. pro Querente And upon Error brought Judgment was Affirmed in the Exchequer for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Glebes viz. per Non-Residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawful As if a Patron which hath a Son which is not yet fit to be presented for default of Age and he present another with an Agreement that when his Son come to the Age of 24 years he shall Resign it it is a good Obligation And this Case viz. an Obligation with Condition to Resign had been Adjudged good in the Case of one Jones An. 8 Jac. And the Counsel said That he who is presented to a Church is Married thereto and it is like as if a man who hath married a Wife should be bound to be divorced from her or not cohabit with her these Conditions are void But these resemble not our Case 8. It was said in Johnson's Case That if a Parson Leases his Rectory for years or parcel of his Glebe reserving a Rent and dies if his Successor accepts the Rent that Acceptance does not make the Lease good because by his death the Franktenement is in Abeyance and in no Man And also a Parson cannot Discontinue And by consequence That that he did without Livery is determined by his death And it is not like to the Case of an Abbot Prior or Tenant in Tail 9. Hendon moved for Dr. Clay Vicar of Hallifax That a Prohibition might be granted to the High Commissioners of York for that that these Articles by one Smith were exhibited against him viz. 1. That he read the Holy Bible in an irreverent and undecent manner to the scandal of the whole Congregation 2. That he did not do his duty in Preaching but against his Oath and the Ecclesiastical Canon had neglected for sundry Mornings to Preach 3. That he took the Cups and other Vessels of the Church consecrated to holy use and employed them in his own House and put Barm in the Cups that they were so polluted that the Communicants of the Parish were loath to drink out of them 4. That he did not observe the last Fast Proclaimed upon the Wednesday but on the Thursday because it was an Holy-day 5. That he retained one Stepheson in one of the Chappels of Ease who was a man of ill Life and Conversation viz. an Adulterer and a Drunkard 6. That he did not Catechize according to the Parish-Canon but only bought many of Dr. Wilkinson's Catechisms for every of which he paid 2 d. and sold them to the Parishioners for 3 d. without any examination or instruction for their benefit And that he when any Commissions were directed to him to compel any person in his Parish to do Penance he exacted money of them and so they were dismissed without inflicting any penalty upon them as their Censure was And that he and his Servants used divers Menaces to his Parishioners and that he abused himself and disgraced his Function by divers base Labours viz. He made Mortar having a Leathern-Apron before him and he himself took a Tithe-Pigg out of the Pigsty and afterwards he himself gelded it And when he had divers Presents sent him as by some Flesh by some Fish and by others Ale he did not spend it in the invitation of his Friends and Neighbours or
may have a Writ of Right of Advowson but this Writ lieth not for him unless he claim to have the Advowson to him and his Heirs in Fee-simple which Advowson is valuable though the Presentment be not 18. The Queen seized of an Advowson being void the Ancestor of P. Presented and so gained it by Usurpation and then the Church being void he Presented again his Clerk dies and then the Queen grants the Advowson to Y. the Plaintiff who brings a Quare Impedit in the Queens Name supposing that this Usurpation did not put the Queen out of Possession It was argued That the Grant could not pass without special words because it is in the nature of a Chose in Action And Dyer Mead and Windham held That this Usurpation did gain possession out of the Queen and that she should be put to her Writ of Right of Advowson but the Opinion of Anderson Cheif Justice was clearly That the Queen was not out of Possession for he said That it was a Rule in our Books that of a thing which is of Inheritance the act of a Common person will not put the Queen out of possession But if she had only a Chattel as the next Advowson then perhaps it is otherwise But Mead and Windham very earnestly held the contrary relying on the Book of 18 E. 3. where Shard said That if the King had an Advowson in his own Right and a Stranger who had no Right happen to Present it puts the King out of Possession And the King shall be put to his Writ of Right as others shall The Defendant alledged Two Presentations in his Ancestor after the Title of the King and demanded Judgment if the King should have a Writ of Possession and the Plea was admitted to be good But after Pasch 25 Eliz. Judgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 19. In a Quare Impedit by G. against the Bishop of L. and D. Incumbent The Case was That a Mannor with the Advowson Appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question All the Justices held clearly That the Avoidance would not pass because it was a Chattel vested And Periam said that in case of a Common person without question an Advowson appendant would not pass by such Grant for if the Father die it shall go to his Executor but if it be an Advowson in Gross in case of a Common person there is some doubt But in the Principal Case all the Judges held ut supra and said That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster But F. N. B. is contrary 33. N. 20. Of Advowsons there are three Original Writs whereof one is a Writ of Right the other two of Possession viz. Darrein Presentment and Quare Impedit And where an Advowson descendeth unto Parceners though one Present twice and usurpeth upon his Co-heir yet he that was negligent shall not be clearly barr'd but another time shall have his turn to Present when it falleth And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living or to Collate or Nominate to any Donative whatsoever the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge Also by the Statute of 13 E. 1. 5. it is directed what Action shall be maintained by him in the Reversion who is disturbed to Present after the Expiration of a particular Estate where there is also provided a Remedy for him in the Reversion or Remainder or others that have right where there is an Usurpation of an Advowson during any particular Estate And that Judgments given in the Kings Courts touching Advowsons shall not be avoided by Surmizes but by lawful means Likewise it is Statute-Law to hold That Advowsons shall not pass from the King but by Special words for when the King doth give or grant Land or a Mannor with the Appurtenances unless he make express mention in his Deed of Advowsons of Churches when they fall belonging to such Mannor or Land they are reserved to him notwithstanding the word Appurtenances albeit among Common persons it hath been otherwise observed nor is it lawful to purchase an Advowson during the dependancy of a Suit at Law concerning the same 21. If a Feme Covert be seized of an Advowson and the Church becomes void and the Wife dieth the Husband shall Present Where Parson and Vicar be Endowed in one Church and the Vicarage becomes void the question is To whom the Advowson of the Vicarge doth belong and who in that case shall be said to be the Patron of the Vicarage Whether the Patron of the Parsonage or the Parson It seems the Books at Common Law the Judges and the Court were divided in Opinion touching this point some of the Judges were of Opinion That the Advowson of the Vicarage appertains to the Parson Others that it belongs to the Patron Such as inclined that it is in the Patron gave for reason That the Ordinary cannot make a Vicar without the assent of the Patron 5 E. 2. Quare Impedit 165. puts the Case That although the Vicarage be Endowed with the assent of the Patron and Ordinary yet the Advowson of the Vicarage doth remain in the Parson because the same is parcel of the Advowson of the Parsonage And 16. E. 3. Grants 56. it was a question Whether by the Grant of the Advowson of the Church the Advowson of the Vicarage did pass and there it was said by Stone That it doth pass as Incident to the Parsonage And in regard the Vicar is as the Parsons Substitute and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson whose Concern it is to see that he be a fit and able person sufficient for the Cure it should thence seem rational that the Parson should be his Patron to Present such an one to the Vicarage as shall be sufficient for the Cure for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson than to the First Patron of the Parsonage Appropriate 22. An Advowson cannot it seems at the Common Law be called a Demesne for that it is not such a thing as a man hath a Manual occupation or possession of as he hath of Lands Tenements and Rents whereof he may say in his Pleading That he was seized thereof in his Demesn as of Fee which he cannot say that hath only the Advowson of a Church because it lies not as the other in Manual occupation And therefore in the case
gains not the Patronage from the Crown 3. The Ordinary's Collation by Lapse is only in the Patron 's right 4. What Presentation is and how in ease of Co-heirs or Joynt-tenants or Tenants in Common 5. Whether the Grantee of the next Presentation not Presenting at the First Avoidance shall lose the benefit of his Grant 6. The Right of Presentation is not an Ecclesiastical but Temporal Inheritance and cognizable at the Common Law 7. The power of the Ordinary in case of Coparconers Joyntenants or Tenants in Common as to Presentation 8. In what Case the Bishop hath Election whose Clerk he will Admit 9. Whether a Presentation is revokable before Institution 10. Whether the Son may succeed his Father in the Church and who may vary from or repeal his Presentation 11. What Nomination is and the Qualifications thereof 12. In what Case the Presentation is the Nomination or both as one in Law 13. In what case the Nominator shall have a Quare Impedit as well as he that hath Right of Presentation And there may be a Corrupt Nomination as well as a Corrupt Presentation 14. Whether the Collatee be Incumbent if the Bishop Collate him within the Six months And in what Case the Kings Presentation within the Six months may be an Vsurpation or not 15. Where the Ordinary Collates the Patron is to take notice of it at his peril 16. Who shall Present in case the Ordinary to whom a Lapse is devolved be within the Six months translated to another Bishoprick 17. A Resignation to a Proctor without the Bishops Acceptance makes not the Church void 18. A Parochial Church may be Donative exempt from the Ordinary's Jurisdiction and is Resignable to and Visitable by the Patron not the Ordinary 19. Where Two are to Present by Turns what Presentation shall serve for a Turn or not 20. By the Canons the Son may not succeed the Father in the same Church 21. To what a Presentation may be made 22. The Kings right of Presentation as Supream Patron 23. In what case the Kings Prerogative to Present doth not take place 24. In what Cases it doth 25. To whom the Patronage of an Archbishoprick belongs 26. Whether Alien Ministers are Presentable to a Church in England 27. In what Cases the Patron may Present de novo 28. Difference between the King and a Common person in point of Presentation 29. A Collation makes no Plenarty where it is tortious 30. Presentation may be per parol as well as by Writing 31. What amounts to a Revocation of the King's Presentation 32. Causes of Refusal of the Clerk Presented 33. Certain Law Cases pertinent to this Subject 34. Whether Institution granted after a Caveat entered be void 35. What shall be held a Serving of a Turn and good Plenarty and Incumbency against a Patron in Severalty 36. A Clerk refused by reason of his not being able to speak the Welsh Language 37. What is the best Legal Policy upon every Presentation by Vsurpation 38. One of Two Grantees of an Advowson to whom the other hath released may Present alone and have a Qua. Imp. in his own Name 39. A Clerk refused for Insufficiency by the Bishop may not afterwards be Accepted 1. COllation in its proper signification is the bestowing of a Benefice by a Bishop that hath it in his own proper right gift or patronage distinguish'd from Institution only in this That Institution into a Benefice is at the instance motion or Presentation of the Patron or some other having pro tempore the Patrons Right performed by the Bishop Extra de Instit de Concess Praeben c. But Collation is not only when the person is Admitted to the Church or Benefice by the Bishop or other person Ecclesiastical but also when the Bishop or that other Ecclesiastical person is the rightful Patron thereof or when the Bishop or Ordinary hath right to Present for Lapse of the Patron and yet sometimes Collation is and hath been used for Presentation And so Presentation Nomination and Collation are commonly taken for one and the same thing in substance though at times distinguished And whereas it hath been a Question If one hath the Nomination and another the Presentation which of them shall be said to be the very Patron it hath alwaies been taken to be the better opinion that he who hath the Nomination is Patron of the Church And where an Abbot had the Presentation and another the Nomination and the Abbey surrendred to the King he that hath the Nomination shall now have all for the King shall not Present for him that being a thing undecent for the King But as to Collation and Presentation they were in substance one and the same thing as aforesaid But to speak properly Collation is where the Bishop himself doth freely give a Benefice which is of his own Gift by right of Patronage or Lapse This word Collation seems also to be frequently used when the King Presents and hence it is that there is a Writ called Collatione facta uni post mortem alterius c. directed to the Justices of the Common Pleas Commanding them to direct their Writ to a Bishop for the Admitting one Clerk in the place of another Presented by the King which Clerk during the Suit between the King and the Bishops Clerk is departed this life For Judgment once given for the Kings Clerk and he dying before his Admission the King may bestow his Presentation on another This Collation Presentation and Nomination are in effect Synonima being distinguished only in respect rather of Persons than of Things 2. Yet there may be a great difference betwixt Presentation and Collation which gains not the Patronage from the King as appears in the Case of the Queen against the Bishop of York where the Queen brought a Quare Impedit against the said Bishop and one Monk and counted upon a Presentment made by King Hen. 8. in the right of his Dutchy of Lancaster and so conveyed the same to the Queen by Descent The Bishop pleaded That he and his Predecessors have Collated to the said Church c. and Monk pleaded the same Plea upon which there was a Demurrer And it was moved by Beaumont Serjeant That the Plea is not good for a Collation cannot gain any Patronage and cannot be an Usurpation against a Common person much less against the Queen to whom no Lapses shall be ascribâ—d and although the Queen is seized of this Advowson in the right of her Dutchy yet when the Church becomes void the right to Present vests in the Royal person of the Qu. and yet vid. the Old Regist 31. Quando Rex praesentat non in jure Coronae tunc incurrit ei Tempus Hamm. Serj. By these Collations the Queen shall be put out of possession and put to her Writ of Right of Advowson but the same ought to be intended not where the Bishop Collates as Ordinary but where he Collates
or not doth properly belong to the Common Law And Jones cited a Judgment in William's Case according Note that by the Constitution of Otho and Othobon That Institution and Induction is voidable in the Ecclesiastical Court if no Prohibition be prayed 10. In the Case of the King against the Archbishop of Canterbury and Thomas Prust Clerk in a Quare Impedit was vouched Holland's Case in Cok. 41 51. to shew that there is a difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law For before the Statute by the taking of the second Benefice the first Church was void but not so that the Lapse incurred upon it And as for Pluralities the words of the Statute are That it shall be void as if he were naturally dead and therefore if a man takes a second Benefice and dies Issue ought to be taken whether the first vacavit per mortem And it is found That Not For it was void before the death of the Incumbent 11. P. was Collated Instituted and Inducted by the Bishop of Exeter Patron Dr. Hall the Bishop Collates another pretending that the first Incumbent had taken a second Benefice whereupon the first was void and revera the first Incumbent had a Dispensation And notwithstanding that the Bishop Sequesters the Benefice and upon Discovery thereof to the Court a Prohibition was granted 12. In Bene's Case against Trickett the point was Whether the value of the Church for Plurality by 21 H. 8. shall be eight pounds according to the Book of Rates and Valuation in the First-fruits Office or according to the very value of the Church per Annum Atkinson That according to the value of the King's Books For the Parliament never thought that any man could live upon so little as eight pounds per Annum which is not six pence a day Note 38 E. 3 4. and Dyer 237. but by the Court That it shall be according to the very value of the Church in yearly value in the Statute of 21 H. 8. And by Gawdy and Fenner to whom agreed Yelverton That the eight pound shall be accounted according to the very value of the Church per Annum 13. In a Quare Impedit it was doubted If A. having two Benefices with the Cure by Dispensation and then takes a third Benefice with Cure If now both the first Benefices or the first of them only be void Hieron said That it was adjudged that both of them should be void 14. If the King grant a Licence to an Incumbent to be an Incumbent and a Bishop and he afterwards be made a Bishop the nâ—â—ice is not void Henry de Blois Brother to King Stephen was Bishop of Winchester and Abbot of Glassenbury 15. It seems that at the Common Law if an Incumbent had taken a second Benefice with Cure neither the first nor the second had been void But by the General Council of Lateran held in the year 1215. it was ordained That if a man took divers Benefices with Cure of Souls the first should be void unless he had a Dispensation from the Pope This Constitution of the said General Council is ratified and confirmed in Pecham's Constitutions at a Provincial Synod held in this Realm Also if an Incumbent take a Second Benefice with Cure whereby the first is void by the Canon as to the Patron so as he may Present before any Deprivation yet until Deprivation it is not void as to a Stranger for if he sues a Parishioner for Tithes the taking of a second Benefice is not any barr to him Trin. 13. Car. B. R. per Justice Bark which Justice Yelverton in his Argument in Prust's Case said That it had been so Adjudged And if an Incumbent of one or more Benefices with Cure be consecrated Bishop all his Benefices are ipso facto vold upon which Voidance the King and not the Patron is to Present to the Benefices so void by Cession and any Dispensation after Consecration comes too late to prevent the Voidance for the Pope could formerly and the Archbishop now can sufficiently Dispense for a Plurality by the Statute of 25 H. 8. The chief Text of the Canon Law against Pluralities seems to be that of the Decretal de Praebend Dign c. de multa where it is said That in Concilio Lateranensi prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum Instituta c. Et praesenti decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale beneficium habehat sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. Consonant to which is that in Decret Caus 21. q. 1. In duabus Ecclesiis Clericus conscribi nullo modo potest In the Case of a Commendam adjudged in Ireland the Original and Inconvenience of Dispensations and Non obstante's was well weighed and considered where it was said That the Non obstante in Faculties and Dispensations was invented and first used in the Court of Rome for which Marsil Pat. pronounced a Vae against the said Court for introducing that clause of Non obstante That it was an ill President and mischievous to all the Commonwealths of Christendom For the Temporal Princes perceiving that the Pope dispensed with Canons in imitation thereof have used their Prerogative to dispense with their penal Laws and Statutes when as before they caused their Laws to be religiously observed like the Laws of the Medes and Persians which could not be dispens'd with See the Case of Penal Statutes Co. 7. fo 36. h. For this Reason it was that a Canonist said Dispensatio est vulnus quod vulnerat jus commune And another saith That all abuses of this kind would be reformed Si duo tantum verba viz. Non obstanie non impediâ—ent And Matth Par. in Anno Dom. 1246. having recited certain Decrees made in the Council of Lions which were beneficial for the Church of England Sed omnia baec alia says he per hoc repagulum Non obstante infirmantur 16. In a Quare Impedit the Case was Dr. Playford being Chaplain of the King accepted a Benefice of the Presentation of a common person and he after accepted another Presentation of the King without any Dispensation both being above the value of eight pounds per Annum The Question was Whether the first Benefice was void by the Statute of 21 H. 8. cap. 13. For if that were void by the acceptance of the second Benefice without Dispensation then this remains a long time void so that the King was intituled to present by Lapse and presented the Plaintiff The Statute of 21 H. 8. provides That he who is Chaplain to an Earl Bishop c. may purchase Licence or Dispensation to receive have and keep two Benefices with Cure provided that
the different conditions of the persons of whom they were begotten As when they were begotten by persons of a single and unmarried Estate and of such as were kept as Concubines the Civil Law called them Filii Naturales if begotten of single Women not design'd for Concubines for satisfaction of present Lust then they were called Spurii if begotten of such as the Law styles Scorta or common Harlots by publick profession than they were called Manzeres if begotten of Married Women then they were called Nothi if begotten between Ascendents and Descendents or between Collaterals contrary to the Divine prohibition then they are called Incestuosi 6. Bastardy so stains the Blood that the Bastard can challenge neither Honour nor Arms and so disables him that he cannot pretend to any succession to inheritance The Temporal and the Ecclesiastical Laws with us do not differ as to matter of Bastardy but something as to the prosecution thereof The Ecclesiastical Law brings it two ways to Judgment Incidently and Principally the Common Law makes two sorts thereof General and Special Incidently at the Ecclesiastical Law when it is pleaded in Bar to a claim of something in right of Nativity Principally when by reason of some slanderous and reproachful speeches it is brought before the Court as the principal matter in Judgment to be alledged and proved that thereupon Sentence may be pronounced accordingly by the Ecclesiastical Judge Ad Curiam enim Regiam non pertinet agnoscere de Bastardia General Bastardy at Common Law is so called because it is in gross objected in Barr against a Man to disappoint him in the Principal matter of his Suit Which because it is of Ecclesiastical Cognizance is sent by the Kings Writ to the Ordinary to enquire whether the Party charged with Bastardy were born in or out of Lawful Matrimony And as the Ordinary finds the truth of the matter upon due examination so he pronounceth accordingly in his Consistory whereof he returns Certificate to the Temporal Courts Special Bastardy at the Common Law seems to be only that where the Matrimony is confest but the Priority or Posteriority of the Nativity of him whose Birth is in question is controverted General Bastardy ought to be Tryed by the Bishop and not by the Country But Bastardy in this sense cannot be tryed by the Ordinary otherwise than by vertue of the Kings Writ on some Suit depending in the Temporal Court When Issue is joyn'd on Bastardy before it be awarded to the Ordinary to Try it Proclamation thereof is made in the same Court and after Issue it is certified into Chancery where Proclamation is made once a Month for three Months and then the Lord Chancellour certifies it to the Court where the Plea is depending and after it is Proclaimed again in the same Court that all such whom the said Plea concerns may appear and make their Allegations before the Ordinary whose Certificate of Bastardy is nothing to the purpose unless it come in by Process at the Suit of the Parties And this Bastardy ought to be certified under the Seal of the Ordinary for it is not sufficient to certifie it under the Seal of the Commissary And although the Defendant be certified a Bastard by the Ordinary yet the Certificate shall lose its force if the Plaintiff be afterwards Nonsuit for then the Certificate is not of Record In the Case of Elborough against Allen it was said by Crook that for calling one Bastard generally there is not any sufficient Ground of Action at the Common Law but if there be any special Loss thereby it shall be a good ground of Action at the Comon Law as if a Man be upon Marriage or in treaty for the sale of Land whereby his Title is disparaged Doderidge Justice said That the word Bastard is generally of another Jurisdiction and belongs to the Ecclesiastical Court to determine what shall be Bastardy and their Judgement is given for the damage which the party had in his birth and for that their Entry is quia laesis est natalitiis And in this Case the Chief Justice said that generally to say J. S. is a Bastard J. S. hath not cause of Action given him thereby but if there be a Temporal cause averr'd the Common Law may proceed therein for though Originally Bastardy be of the Ecclesiastical Jurisdiction not Triable at the Common Law and therefore as in its general nature it is of the Spiritual Jurisdiction so being by its generality no ground of Action at the Common Law yet if one be to sue for a Childs part or sue for the Administration of his Fathers Goods and this be set forth in the Declaration it will maintain an Action at Common Law Doderidge Justice said That to say generally that one called him Bastard is not ground of Action if he doth not shew some special Loss thereby as when a Woman brings her Action and says that she was in Treaty of Marriage and that the Defendant called her Whore this will not maintain an Action unless she say withall that by reason of these words she lost her preferment but Chamberlain Justice said to call a Woman Whore is at this day a sufficient cause of Action for her for that it is punishable by the Statute he also further said that if a Man Libel in the Ecclesiastical Court that he hath Lands by descent and that J. S. call'd him Bastard they may not proceed there or if they do a Prohibition lies He further said that for calling a Man Bastard generally without special Loss alledged Action shall be maintained and Cited a Case in 6 Eliz. Dyer Where a Man recovered red great Dammages for that the Defendant had said that his Father was a Bastard And cited also one Nelson and Stokes Case in 5 Jac. where the Plaintiff did not alledge any special cause of Action and yet recovered 7. By the Civil Law such as were born in the beginning of the eleventh Month next after the decease of their Mothers Husband were to be accounted legitimate but such as were born in the end thereof were to be accounted Bastards Auth. Col. 4. yet the Gloss there relates a matter of Fact contrary to this Law and gives us an instance of a Widow in Paris who was delivered of a Child the fourteenth Month after her Husbands death yet the good repute of this Womans continency prevailed so much against the Letter of the Law that the Court Judg'd the causes of Child-birth to be sometimes extraordinary the Woman to be chast and the Child Legitimate Hoc tamen in exemplum trahi facile non oportet as the Gloss there concludes 8. By the Common Law if a Child be born but an hour after the solemnization of Marriage it shall be the Husbands though it were begotten by another Man who was not the Mothers Husband and may be the Heir of him who Married the Mother but a Day
Quean or words to that effect or importing the same Sense in this Case a Prohibition was granted 1 Because no Action lies for that Word Quean 2 For the uncertainty thereof 6. The Defendant said to one Anthony Elcock who was a Suiter to the Plaintiff and with whom there was near an Agreement of Marriage I know Davies Daughter well she did dwel in Cheapside and a Grocer did get her with child and the Plaintff declared that by reason of these Words Elcock refused to take her to Wife Adjudged that the Action would lie at the Common Law and the Suit was not to be in the Spiritual Court for Defamation but at the Common Law for that she is prejudiced in that which should be her Temporal advancement and the ground of the Action is Temporal The truth of the Case was this an Action upon the Case for a Slander was brought by Anne Davies against John Gardiner That whereas there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock the Defendant to the intent to hinder the said Marriage said and published that there was a Grocer in London that did get her with Child and that she had the Child by the said Grocer whereby she lost her Marriage To which the Defendant pleaded Not guilty and was found guilty at the Assizes at Aylesbury to the dammages of Two hundred Marks and now it was alledged in Arrest of Judgment that this matter appeareth to be meerly Spiritual and therefore not determinable at Common Law but to be prosecuted in the Spiritual Court. But per Curiam the Action lies here for a Woman not Married cannot by intendment have so great advancement as by her Marriage whereby she is sure of maintenance for her life or during her Marriage and Dower and other benefits which the Temporal Laws give by reason of her Marriage and therefore by this Slander she is greatly prejudiced in that which is to be her Temporal advancement for which it is reason to give her remedy by way of Action at Common Law As if a Woman keep a Victualling house to which divers of great credit repair whereby she hath her livelyhood and one will say to her Guests that as they respect their Credits they take care how they use such a House for there the Woman is known to be a Bawd whereby the Guests avoid the House to the loss of her Husband shall not she in this Case have an Action at Common Law for such a Slander It is clear that she shall So if one saâ—th that a Woman is a Common Strumpet and that it is a Slander to them to come to her House whereby she loseth the advantage that she was wont to have by her Guests she shall have her Action for this at Common Law So here upon these collateral circumstances whereby it may appear that she hath more prejudice than can be by calling of one Harlot and the like And judgment was given for the Plaintiff 7. Touching Defamation for which Suit is in the Ecclesiastical Court. Resolved the matter must be meer Spiritual and determinable only there for if it concern any matter which is determinable at the Common Law the Ecclesiastical Judge hath not the cognizance thereof 8. Action was for these words Pierce hath taken a false Oath in the Court of Consistory of Exeter It was objected that for matters in the Spiritual Court an Action will not lye And the Stat. of 5 Eliz. of Perjury doth not extend to those Courts but it was resolved that the Action did lye for these words and that the Statute doth extend to such and the like Courts as the Court of Star-chamber c. And the words that he hath taken a false Oath shall be intended actively and shall amount to these words He is forsworn In this Case it was said by Prideoux that these words are Actionable although the Perjury be supposed to be committed in the Spiritual Court for he shall be Excommunicated if he will not appear and he shall do penance in a white sheet which is as great a disgrace as to be set upon the Pillory And it was ruled in an Action upon the Case betwixt Dorrington and Dorrington upon these words Thou art a Bastard that an Action lieth and yet Bastardy is a Spiritual matter and there determinable so for these words Thou art a Pirate an Action lieth and yet Piracy is not punishable by the Common Law but in the Court of Admiralty And these words He hath taken a false Oath do amount to these words He is forsworn Wray conceived that the words are not Actionable for there is a Proviso in the Statute of Eliz. cap. 9. that the said Act shall not extend to any Ecclesiastical Court but that every such Offender shall be and may be punished by such usual and ordinary Laws as heretofore have been and are yet used and frequent in the said Ecclesiastical Court Gaudy upon these words an Action doth not lye for they are not pregnant of any Perjury in the Plaintiff for he may be meer passive in it for if one of the Masters of the Chancery Minister an Oath to any person or any Commissioners c. and the Plaintiff sweareth falsly a Man may say that the Master of the Chancery or the Commissioners have taken a false Oath and yet he is not guilty of falsity And afterwards Mutata Opinione Wray that the Proviso in the said Statute is to this intent such an offence may be enquirable and examined in the Ecclesiastical Court in such manner as was before but the same doth not take away or restrain the Authority of the Common Law but that such an Offence may be here examined c. And as to the latter exception upon these words he hath taken a false Oath it shall be intended Actively and not Passively And if so the Defendant ought to have so pleaded it And afterwards Judgement was given for the Plaintiff 9. Pollard and his Wife brought an Action against Armshaw for these words viz. Thou art a Whore for I. S. Goldsmith hath the use of thy Body and the Cart is too good for thee Per Curiam the Action will not lie for the Common Law cannot define who is a Whore but where if one keep a Victualling House it be said she keeps a house of Bawdry an Action will lie 10. Action upon the Case for words of Defamation Whereas the Plaintiff was a Person of good Fame and always free from Adultery and Fornication c. And after the death of Brian her late Husband was in Communication with one Cowley for a Marriage betwixt them That the Defendant to deprive her of her Fame and to hinder her from the said Marrige spake of the Plaintiff these words viz. she is a Whore and her Children innuendo her Children which she had by the said Brian late her Husband are Frambishes Bastards innuendo one Nicholas Frambish
was a common Pimp and notorious which he would justifie After Verdict for the Plaintiff Littleton the King's Sollicitor moved in Arrest of Judgment that these words are not Actionable for it is a meer Spiritual Slander as Whore or Heretick and punishable in the Spiritual Court and not at the Common Law and he said that divers times Suits have been in the Spiritual Court for such words and Prohibitions prayed and never granted vid. 27. H. 8. 14. But to say that he keeps a Bawdy house is presentable in the Leet and punishable at the Common Law Ward è Contra because it is spoken of one of an honourable profession viz. a Souldier and trenches on his reputation to be taxed with such a base Offence and he said that such offences have been divers times punished in London by corporal punishment but it was answered that was by Custom and there the calling one Where is Actionable Jones Justice held that the Action lay not and all the Justices agreed that the exposition and averment that Pimp is known to be a Name for a common Bawd is good Croke and Berkley agreed that the words are very slanderous and more than if he had call'd him Adulterer or Whoremonger c. aud may be indicted and punished for it corporally as tending to the breach of the Peace and rule was given that Judgement should be entred c. But was afterwards stayed 17. Suit being in the Ecclesiastical Court for calling a mans Wife Welch Jade and Welch Rogue Sentence being there in the Arches the Defendant appealed to the Court of Audience and in the Appeal mentioned the former words and in the libel was interlined and a Welch Thief and hereupon a Prohibition was prayed and granted unless cause were shewn by such a day to the contrary For it was held clearly that for the word Welch Thief Action lies at the Common Law and they ought not to sue in the Spiritual Court And for the other words it was conceived upon the first Motion they ought not to sue in the Spiritual Court for they be words only of Heat and no Slander But it was afterwards moved and shewn that the said words A Welch Thief were not in the first Libel nor in the Appeal at the time of the Appeal but were interlined by a false Hand without the privity of the Plaintiff in the Ecclesiastical Court and that upon Examination in that Court it was found to be falsly inserted and ordered to be expunged And that the words Welch Jade were shewn in the Libel to be expounded and so known to be a Welch Whore which being a Spiritual Cause and examinable there it was therefore prayed that no Prohibition should be granted and if it were granted that a Consultation should be awarded And of this Opinion was all the Court that the words and a Welch Thief being unduly interlined and by Authority of the Ecclesiastical Court expunged and in that Court Jade is known and so expounded for a Whore our Law gives Credence to them therein and especially being after two Sentences in the Spiritual Court This Court will not meddle therewith Wherefore Consultation was granted if any Prohibition was issued forth quia improvide And Rule given that if a Prohibition was not passed that none should be granted 18. It was moved for a Prohibition by Harris Serjeant to the Court of Audience because that the Plaintiff was sued there for saying to one Thou art a common Whore and a base Quean and Harris said that a Prohibition had been granted in this Court for saying to one that she was a pimperly Quean And it was the Case of Man against Hucksler And Finch said though the words are not Actionable in our Law yet they are punishable in the Spiritual Court For the word Quean in their Law implies as much as Whore But Hobart said that this word Quean is not a word of any certain Sense and is to all intents and purposes an Individuum Vagum and so incertain 19. In an Action upon the Case that whereas he is Parson of D. and a Preacher the Defendant Slandered him in haec verba Parrett is a lewd Adulterer and hath had two Children by the Wife of I. S. I will cause him to be deprived for it By the Court the Action doth not lie For the Slander is to be punished in the Ecclesiastical Court And so awarded Quod Quer. nil cap. per. bill 20. D. had sued T. in the Ecclesiastical Court for this viz. That whereas she was of good fame and kept a Victualling House in good Order that the said T. had published that D. kept an house of Bawdry T. now brought a Prohibition and by the Court well for D. might have an Action for that at the Common Law especially where she kept a Victualling house as her Trade Note 27. H. 8. 14. And by the Justices that the keeping of a Brothel-house is enquirable at the Leet and so a temporal Offence And so was the opinion of the Court Tr. 7. Car. B. R. Mrs. Holland's Case 21. W. sued L in the Ecclesiastical Court for a Defamation and had Sentence L. appeals and depending the Appeal comes a Pardon which relates to the Offence and pardons it then L. deferrs his Appeal and for that W. had costs taxed him And now L. prayed a Prohibition because he deferr'd his Appeal because of the Pardon which had taken away the Offence And by the Court in that Case after the pardon the inferiour Court cannot tax Costs but it was urged that the superiour Courts might tax Costs upon the desertion of the Appeal which is an Offence after the Pardon But it was answered on the other side that it was in vain to prosecute the Appeal when the Offence it self is pardoned The words were Thou art a Pander to Sr. Hen. Vaughan And there was much debate if they were actionable at Common Law yet it was agreed that a Suit may be brought for them in the Spiritual Court as for calling one Whore Bawd or Drunkard But otherwise by Jones if he had said That he was Drunk for then a Prohibition lies And it was ruled in 6. Jac. B. R. in the Case of Cradock against Thomas a Prohibition was granted in a Suit for calling one Whoreson And in Weeks Case a Prohibition in a Suit for calling one Knave 22. E. and M. being reputed Church-wardens but they never took any Oath as the Office requires present a Feme Covert upon a common report for Adultery c. And the Husband and Wife libel against them in the Ecclesiastical Court for that Defamation And when Sentence was ready to be given for them the Church-wardens appeal to the Arches where the presentment was proved but by one Witness they sentenced the Baron and Feme But now Ward Serjeant moved for a Prohibition but it was denied by the Court for they were Plaintiffs first And also it is a Cause which this