Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	justice_n	writ_n	1,630	5	9.1550	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A50670	The parson's monitor, consisting of such cases and matters as principally concern the clergy collected from the statute and common laws, as also the constitutions and canons ecclesiastical : confirmed 1 Jac. anno Dom. 1603 : together with the Articles of religion, authority of the convocation, privilege of churches and church-yards, payment of first-fruits and tenths, in whose name and style ecclesiastical courts are to be kept, and the process issuing out of the same are to run in, and with what seal to be sealed : with several other matters (never before extant) very material and necessary to be known by the clergy in general, and all persons concerned either as patron, or incumbent / by G. Meriton, gent.	Meriton, George, 1634-1711.	1681 (1681)	Wing M1808; ESTC R702	137,500	344

the same to the Ordinary or Guardian of the Spiritualities for the time being so that B. his Heirs or Assigns Patrons of the said Church may present anew to the same discharged of all Incumbrances made or suffered by A. then the same Obligation to be void otherwise c. and this upon demurrer was held to be a good condition without averment that it was for a Simoniacal purpose for otherwise it doth not appear to the Court to be so and there is a difference between malum inse against the Common Law and malum prohibitum by Statute Law or by the Civil or Ca●on Law whereof the Judges at Common Law take no notice and it is there further said that if the condition were that after the Institution and Induction into the Church the Obliger shall at all times afterwards be Ordinarily resident and serving the cure of the said Benefice without absence by 80 daies in any one Year during the time that he shall be Parson there this is a good condition without any averment to be taken for any Simoniacal purpose M. 14 Car. 1. B. R. Carey and Yeo's Case Intratur H. 13 Car. 1 Rot. 445. Roll's Cases 1 part f. 417. V. 1 2. vide Co. Inst 3 part f. 153. in the Margin Simoniacal promise void A Parson did promise a Man that if he would bestow his labour and pains to procure him to be Presented Instituted and Inducted into the Chapel of the Tower being then void and a Donative in the King's Gift that he would pay him twenty pounds upon request whereupon he did procure him to be presented c. to the same and then required his money which the Parson refused to pay and thereupon he brought his Action in the Court of the Tower of London and had a Verdict and Judgment for the money upon which the Parson brought a Writ of Error and it was agreed that the Judgment was Erronious for the consideration was Simoniacal and against Law and no good consideration and therefore the promise not good and so the Judgment was reversed as Justice Jones reports it but in Justice Crook's reports it is there said that the Declaration was held not to be good for the Plaintiff had laid the promise to pay after the Defendant was Rector and shews that he was Rector by his procurement upon the said promise which could not be for he was never Rector but a Person utterly disabled to be a Parson by this Simoniacal contract as by the 13 Eliz. for not reading the Articles of Religion M. 9 Car. 1 B. R. Mackaller and Todderick's Case Jone's Rep. f. 341. pl. 1 Cro. Car. f. 337. pl. 24. 353. pl. 18. 361. pl. 2. and Roll's Cases 1 part f. 18. The King's turn lost when If a Clerk be Presented by Simony and be Instituted and Inducted into the Living and dye possessed thereof yet this doth not take away the King's turn but he may present after the Incumbent's Death if he please but if the Incumbent in his Life time resign or the like and a new Clerk were presented and dyed then the King's turn had been lost and if a Patron contract with one for Simony and then present another without Simony the King gains nothing for there must be an actual though not an effectual Presentation but if once the Patron have presented by Simony the King is straightwaies Interested though no Admission follow by the express words of the Statute but where the Patron is Innocent and the Simony begins in the Institution and Induction there the Church is void from the Induction only and the Patron shall present de novo because no fault in him and not the King And so where a Clerk gets Orders by Simony and obtains a Living within Seven Years Lawfully in this Case it is void from the Induction as if he were Dead and the Patron shall present again and not the King see P. 14 Jac. C. B. Rot. 1026 Winchcome and Bishop of Winchester and Puleston's Case Hob. Rep. f. 165 166 167. Noye's Rep. f. 25. M. Rep. f. 877. pl. 1231. Presentment by Simony serves for a turn If one who hath the grant of the next avoidance to a Church present by Simony and his Clerk is received he shall never present again as taking this to be void and so his turn to remain for as to him it is full and he shall not disable his own Act And if a Parson who comes in by Simony sue for Tythes in the Ecclesiastical Court or for his treble damages at Common Law his Parishioners may plead him no Parson because of his Simony for otherwise if the King should present and his Clerk be received he must not pay both and to whom he shall pay it is at his peril upon the Simony or not and if the Ordinary refuse his Plea he may have a Prohibition for it is made void by a Statute Law by which the Spiritual Courts are bound Hob. Rep. f. 168. Noye's Rep. f. 25. and see Tr 10. Jac. C. B. Dr. Hutchinson's son's Case Godb. Rep. f. 202. pl. 288. Note that the Clause of the Act of Precipitate Admissions c. to be avoided Parliament mentioned before in this Chapter which saith that if any Person shall for any sum of Money c. other than for usual Fees Admit Institute c. that every Person so offending shall lose double value of one years profit of every such Benefice c. and that immediately after the Induction such Benefice shall be meerly void c. was made as the Lord Cook saith who was a Member of that Parliament to avoid hasty and precipitate Admissions Institutions c. to the prejudice of them that have Right to present by putting them to a Quare Impedit for no such hast or precipitation is used but for Reward c. as it is to be presumed for there be two great Enemies to Justice and Right viz. Praecipitatio morosa Cunctatio and although the Church be full by the Institution c. against all but the King yet the Church becometh not void by this branch of this Act untill after Induction neither doth it Incapacitate the Clerk from whom such sum of Money or Reward was exacted above the usual Fees but that he may be presented again to the same Living and in all the Cases before mentioned where it is said that they shall forfeit and lose the double value of one years profit c. this shall be accounted according to the true value as the same Living may be Letten and shall be Tryed by a Jury and not according to the Extent or Taxation of the Church whereof one was made both of the Spiritualities and Temporalities in the 28 E. 1. Anno Dom. 1292. in the time of Pope Nicholas the Third and the other in the 26 H. 8. Anno Dom. 1535. in the time of Pope Paul the Third but this last Taxation which is now the

the intent to provide for his Son is not any Simony and of this Opinion were three of the Justices but Anderson was of a contrary Opinion but was over ruled by the other three P. 41 Eliz. C. B. Rot. 1001 Smith and Shelbourn's Case Cro. Eliz. f. 685. pl. 21. but this same Case being reported by Moore f. 916. pl. 1299. he saith that it was clearly agreed to be Simony but all the Justices except Anderson held it to be no Simony if the Son had not been privy to the bargain Ideo Quaere vide 39 Eliz. Buck's Case 3 Jac. Freeman and English ●s Case Hughes cap. 16. P. 3. Car. 1. B. R. Rot. 362. Godb. Rep. f. 390. pl. 475. f. 435. pl. 500. Noye's Rep. f. 25. What contract no Simony In an Ejection firm the point was the Patron takes an Obligation of the Clerk which he presented that he should pay ten pounds yearly to the Son of the last Incumbent so long as he should be a Student in Cambridge unpreferr'd And this was adjudged to be no Simony but if it had been to have paid ten pounds to the Son of the Patron c. then it had been Simony And Justice Foster vouched the Earl of Sussex's Case an Obligation made by the Presentee to the Patron to pay fifty pounds yearly to the Wife and Children of the last Incumbent and held to be no Simony Baker and Mountford's Case Noye's Rep. f. 142. What Covenant no Simony And if a Father in Law upon the Marriage of his Daughter Covenant with his Son in Law without any consideration but voluntarily that he will procure him to be Presented Admitted Instituted and Inducted into such Benefice upon the next avoidance of the same Church this is no Simony but if such a Covenant had been made in consideration of Marriage of his Daughter c. or other consideration that he would procure him to be presented c. to such a Church that had been a Simoniacal contract M. 11 Car. 1. B. R. Birte and Manning's Case Cro. Car. f. 425. pl. 16. Obligation ●o resign no ●imony In debt upon an Oligation for a thousand Marks the Case was thus that whereas the Obligee had procured from Queen Elizabeth Letters of Presentation to the Church of Sretham to which he intended to present his Son breeding him a Schollar after he should attain the Age of 24 Years and in the mean time presented one Lawrence and after Institution and Induction c. took the Bond abovesaid of him that if after his Son was of Age and Capacitated he should absolutely resign the said Benefice within three Months after request to him made then the Obligation to be void otherwise to remain in full force and virtue to this the Defendant Lawrence pleaded non requisitus which upon the Tryal was found against him and it was moved in Arrest of Judgment that it appeared by the condition of the Bond to be a Simoniacal contract and against Law and therefore the Obligation void but notwithstanding the Court gave Judgment for the Plaintiff And afterwards a Writ of Error being brought the Principal Error insisted upon was that this condition is against Law being for Simony but all the Judges of the Common Pleas and Barons of the Exchequer held that the Obligation and condition were good enough for a Man may bind himself to resign and it is not unlawfull but may be upon good and valuable reasons without any colour of Simony as to be obliged to resign if he take a second Benefice or if he be non resident by the space of so many Months or as this Case is to resign upon request if the Patron will present his Son thereto when he should be capable to take it But if it had been averred that it was per colorem Simonii viz. if he did not suffer the Patron to injoy a Lease of the Glebe or Tythes or if he did not pay such a sum of money that had been Simony and it is possible might have made the Obligation void but in this Case there is no such thing and so adjudged no Simony Tr. 8 Jac. Rot. 1130. B. R. Jones and Lawrence's Case Cro. Jac. f. 248. pl. 8. 274. pl. 2. Also in Hill 15 Car. 1. an action of debt brought upon a Bond conditioned Bond to resign ●o Simony without ●●●●ment c. whereas the Plaintiff intended to present the Defendant to such a Benefice that if at any time after his Admission Institution and Induction at the Plaintiff's request he should resign the said Benefice into the hands of the Ordinary that then c. upon Oyer of the condition the Defendant demurred generally c. and upon argument his Council shewed that the condition being to resign when the Patron should request it was Simony and against Law and so the Bond void but all the Court held the contrary but if it had been averred that the Obligation was made per colorem Simonii as to bind the Presentee to pay such a summ of money or to make a Lease of the Tythes or other Act which appears in it self to be Simony then upon such a Plea peradventure it might have appeared to the Court to have been Simony and so the Bond questionable But as it is here it doth not appear that there is any Simony for such a Bond to cause him to resign may be good and upon good reason and discretion required by the Patron viz. if he be not resident or takes a second Benefice by Qualification c. or intended to present his Son when qualified as in the last Case and for these reasons judgment was given for the Plaintiff H. 15 Car. 1. B. R. Babington and Wood's Case Cro. Car. f. 180. pl. 4. Hut Rep. f. 110 Jone's f. Rep. 220. pl. 1. vide M 43 44 Eliz. C. B. Webb and Hargrave's Case M. Rep. f. 641. pl. 883. Indeed there is a Case in Noy where it is said that the Court held it to be Averment requisite to make a Bond Simonical Simony where the Patron had presented one and taken Bond of him to resign when the Patron pleased after three Months warning but the reasons are not set down in the Book so I suppose the condition hath been general to resign and averment made by the Presentee that it was per colorem Simonii c. as is shewed before Tr. 15 Jac. C. B. Rot. 2051. Sir John Pascal and Clarke's Case Noye's Rep. f. 22. There is also another Case in Roll's which contradicts this in Noy besides Bond to resign no Simony c. the two beforementioned so that it can be of no great Authority the Case was thus A. was bound to B. that whereas A. within a short time was to be Presented Instituted and Inducted into a Benefice if therefore after his Admission Institution and Induction at all times upon request of B. his Heirs Executors or Administrators he should resign

3 cap. 5. and by the 1 R. 2. if any offend herein and be thereof duly Convict he is to be Imprisoned and Ransomed at the King's Will and must make agreement with the party 1 R. 2 cap. 15. vide Boulstr Rep. 2 part f. 72 and Cro. Jac. f. 321. pl. 4. and Brow Rep. 2 part f. 301. A Clergy-man guilty of Felony not to be burnt the Hand in If a Clerk in Holy Orders be Convicted of any crime for which the benefit of Clergy is allowable upon producing his Orders he shall not be burnt in the Hand and if he have not his Orders the Court ex gratia may give him time to produce them and if afterwards he be Convicted again he shall have his Clergy again and so ad Infinitum and though the party that may have benefit of his Clergy must pray it the Court not being bound to tender it ex Officio yet the 22 E. 3 F. Coronae 254. says that if the Judge know him to be a Clerk they will not give Judgment though he pray not his Clergy vide 4 H. 7 cap. 13. and see Searle and William's Case Hob. Rep. f. 288. and 294. By the Register it appears that Spiritual Ministers to be excused from paying Tell c. and Ecclesiastical Persons are to be quit of and from the payment of Toll in Fairs and Markets for the Goods and Merchandizes which they buy to be spent on their Rectories and Church Livings and for such Goods and Merchandizes as are gotten on their Church Livings and they are also to be quit of Murage Pontage and Pannage and the like and if they be troubled for payment thereof they may have a Writ out of the Chancery commanding the parties to desist and so an Alias Plures and then an Attachment and the Form of the Writ de essendi quietum de Toloneo runs thus Rex c. Ballivis suis de B. salutem cum Personae Ecclesiasticae secundum consuetudinem bactenus in Regno nostro usitatam approbatam ad Toloneum Pannagium Muragium de bonis suis Ecclesiasticis alicubi in eodem Regno prestand nullatenus teneantur vobis praecipimus quod R. B. Personam de L. c. vide Regist f. 260. F. N. B. 227. F. 228. A. Co. 2 part Inst f. 4. Clergy-men are not to be chosen into Temporal petty Offices And if a Clergy-man who holdeth certain Lands and Tenements by reason of his said Lands ought to be chosen Bailiff Beadle or Reeve or in such like Office for his Lands and by reason thereof shall be chosen into such Office he may discharge himself by Writ out of the Chancery as followeth Rex c. Ballivis de L. salutem cum secundum Legem consuetudinem Regni Nostri Angliae clerici infra sacros Ordines constituti ad Officium Ballivi eligi non debent nec bactenus consueverunt ac jam ex parte W. M. c. There is also the Form of a Writ in F. N. B. to free them if they be distrayned by the Sheriffs or Collectors of Tenths or Fifteens in their Spiritual Possessions antiently belonging to their Churches by their Goods there Register f. 187 188. F. N. B. 175 B. 176. A. Co. Inst 2 part f. 3. 628. Ecclesiastical Persons ought not in They are not bound Pers●nally to serve in War c. Person to serve in War and in an action brought against a Clergy-man wherein a Capias lieth as in Trespass Debt Account c. If the Sheriff return quod clericus est Beneficiatus nullum habens Laicum feodum in which he may be summoned in this Case the Plaintiff cannot have a Capias to the Sheriff to take his Body but he must have a Writ to the Bishop to cause him to come and appear but if the Sheriff return quod Clericus est nullum habens Laicum feodum then a Capias may be granted to the Sheriff because it appears not by the return that he is Beneficiatus so as he may be warned by the Bishop so note the deversity vide 18 E. 3. proc 205. 9 E. 3. 30. 32 E. 3. Process 58. 21 H. 6. 16. 34 E. 3. scire fac 153. Co. Inst 2. part f. A Clergy Man's Body not to be taken upon a Statute acknowledged If any Ecclesiastical Person acknowledge a Statute Merchant or Statute Staple or a Recognizance in the Nature of a Statute Staple his Body shall not be taken by force of any Process thereupon for the Writ runs Si Laicus sit and if he be bound in a Recognizance in the Chancery or any other Court c. and pay not the summ at the day by the Common Law if he had nothing but Ecclesiastical Goods the Recognizee could not have had a Levari facias to the Sheriffs to Levye but the Writ was to be directed to the Bishop of the Diocess to Levye the same upon his Ecclesiastical Goods but now by the Statute of Westminster 2. cap. 18. the Recognizee may sue forth an Elegit directed to the Sheriff to have Execution of the Moiety of his Lands and of all his Goods and Chattels except his Beasts of his Plough Regist f. 300. 16 E. 3. Process 165. F. N. B. 266. A. B. Co. Inst 2 part f. 4. What Remedy Ministers have if the may be step● where they should ●eade their Tythes If any of the Parishioners do disturb their Parson or Vicar to carry his Tythes by the usual ways and passages the Parson may sue in the Spiritual Court for the disturbance and if the other party sue a Prohibition upon the matter sued a Consultation shall be granted F. N. B. 51 A. In the 25 H. 8 There was a Statute made against the excessive number of Ministers may keep what number of sheep they ple●se Sheep wherein there is a Proviso that it might be Lawfull to all Spiritual Persons and every of them to keep such and so many Sheep upon their own Lands as they might have done before the making of the said Act 25 H. 8. cap. 13. The Priviledge of the Clergy and their Servants in the Convocation Note that the Clergy of the Kingdom called to the Convocation by the King 's Writ and their Servants and Families shall have such privileges in coming tarrying and going as the great Men and Communality of this Realm called to the King's Parliament do injoy 1 H. 6. cap. 1. Co. Inst 4 part f. 323. The punishment for disturbing Ministers If any Person or Persons of their own Power or Authority do or shall willingly and of purpose by open and overt Word Fact Act or Deed maliciously or contemptuously molest let disturb vex or trouble or by any other unlawfull ways and means disquiet or misuse any Preacher or Preachers Licensed allowed or Authorized to Preach by any Archbishop or Bishop of this Realm or by any other Lawfull Ordinary or by either of

Clocam cum Capella 3. Vnum Ciphum cum coopertorio 4. Vnum Pelvem cum Lavatorio sive Aquar ' 5. Vnum Anulum Aureum 6. Necnon Mutum Canum quae ad Dominum Regem ratione Prerogativae suae spectant pertinent inter Communia H. 2. E. 2. in Scaccar post mortem Episc Bath Well Tr. 36. E. 3. Ibidem post mortem Episc Cirences H. 5. E. 4. Ibidem Rot. 47. post mortem Archiep. Ebor. Co. Inst 2. part f. 491. For this duty there is a special Writ A Writ lyes for these things after every Bishops death see the form thereof Co. Inst 4. part f. 338. that issueth out of the Exchequer after the Decease of the Bishop for answering of the same and in the Records this is called Multa Episcopi or Multura Episcopi derived à Mulcta for that it was a Fine or Final satisfaction given to the King that they might have power to make their Last Wills and Testaments and to have the probate of other Mens Testaments and granting Administrations for it is true where it is said Nullam habebant Episcopi Authoritatem praeter eam à Rege acceptam referebant Jus Testamenta probandi non habebant Administrationis potestatem cuiquam delegare non poterant nec ipsi quidem Testamenta facere de Jure Communi dum id illis regnante Henrico Tertio Concessum erat Confirmatum vivente Edw. 1. Rot. Claus 7 H. 3. M. 16. Rot. Parl. 36. H. 3. M. 1. And Linwood saith Beneficiatus non potest testari de communi Jure sed de Consuetudine Angliae And he saith also that Probate of Testaments de Consuetudine Angliae non de Jure Communi belong to Court Christian Lin. cap. de Foro compet f. 7. Lib. 7. f. 44. vide Britton f. 11. b. Bract. Lib. 5. f. 403. c. Fleta Lib. 2. cap. 53. Lib. 6. cap. 36. Co. Inst 2. part f. 488. 491. but this seems to be a Digression from our intended purpose but I hope the Reverend Clergy-man will Pardon it vide Co. Inst 4. part f. 338. Prohibition where a Mortuary is demanded when grantable The Bishop of Chester in the Consistory Court of Chester before the Commissary there Sued for a Mortuary after the Death of William Hinde a Priest of the said Diocess Surmising that by Custom there he ought to have for a Mortuary after the Death of every Priest dying within the said Arch-deaconry of Chester the best Horse or Mare his Saddle Bridle and Spurs his best Gown or Cloak his best Hat his best upper Garment under his Gown his Tippet his best Signet or Ring as to the Bishop de debit ' consuetud fore supponitur c. upon this the Defendant obtained a Prohibition averring that there is no such Custom and that she had paid a Mortuary to the Parson of Bumberry and in this Case it was moved for a Consultation and the Suit being for a Mortuary the Court was divided in opinion but it appearing that the Bishop had Sued after the Prohibition which was a Contempt and ought to be answered it was thereupon appointed that he should Plead or Demur And then the Court would give Judgment upon the Record before them M. 7. Car. 1. B. R. Margaret Hinds Case and the Bishop of Chester Cro. Car. f. 237. CHAP. IX What Qualifications are required in Leases made by Ecclesiastical Persons FOrmerly by the Common Law Bishops What Estates Bi●hops c. might have made by the CommonLaw with the Confirmation of the Dean and Chapter Master and Fellows of any Colleges Deans and Chapters Masters or Guardians of Hospitals and their Brethren Parsons and Vicars with Consent of the Patron and Ordinary Arch-deacon Prebend or any other Body Politick Spiritual and Ecclesiastical Concurrentibus his quae in Jure requiruntur might have made Leases for Lives or Years without Limitation or Stint And so might they have made Gifts in Tail or Estates in Fee at their own Will and Pleasure whereupon not only great decay of Divine Service but Dilapidations and other Inconveniences ensued but now the Law is altered in these Cases by the Statutes of the 32 H. 8. 1 Eliz. 18. Eliz. 13. Eliz. 1. Jac. of which Statutes one is enabling and the rest disabling Co. Lit. f. 44. a. I shall first begin with a Recital of Leases in Writing by certain Persons of what force c. the Statutes then give you the Book Cases thereupon By the Stat. 32. H. 8. All Leases to be made of any Mannors Lands Tenements or Hereditaments by Writing endented under Hand and Seal for Term of years or for Term of Life by any Person or Persons being of full Age of One and twenty years having any Estate of Inheritance either in Fee-Simple or in Fee-Tail in their own Right or in the Right of their Churches or Wives c. shall be good and effectual in the Law against the Lessors their Wives Heirs and Successors and every of them according to such Estate as is Comprised and Specified in every such Indenture of Lease in like manner and form as the same should have been if the Lessors thereof and every of them at the time of making such Leases had been Law●ully seized of the same Lands Tenements and Hereditaments comprised ●n such Indenture of a good perfect ●nd pure Estate in Fee-Simple there●f to their own only uses 32 H. 8. ●●p 28. Provided that this Act shall not extend to any Leases to be made of any Old Leases to be Surrendred c. Mannors Lands c. being in the hands of any Farmer or Farmers by virtue of an Old Lease unless the same Old Lease be expired surrendered or ended within one year next after the making of the said new Lease nor shall extend to any Grant to be made of any Reversion of any Mannor Lands c. nor to any Lease of any Mannors Lands c. which have not most commonly been letten to Farme or occupied by the Farmers thereof by the space of Twenty years next before such Leases thereof made nor to any Lease to be made without Impeachment of Wast nor to any Lease to be made above the number of One and twenty years or Three Lives ●● the most from the day of the making thereof And that upon every suc● Lease there be reserved yearly duri●● the same Lease due and payable ●● the Lessors their Heirs and Successo● to whom the same Lands should ha●● come after the death of the Lessors if no such Lease had been there made and to whom the Revers● thereof shall appertain according their Estates and Interests so much yearly Farm or Rent or more as hath been most accustomably yielded and paid for the same within Twenty years next before such Lease thereof made And that every such Person and Persons to whom the Reversion of such Mannors Lands c. so to be letten shall appertain as aforesaid