for the avoiding of Leases made by a Parson by his Absence from his Living by the space of eighty daies in one year and also shews that one Stallowe who was Parson of Sharrington to whom these Tithes did belong and in whose Right the Defendant claimed them was Absent from his Parsonage by the space of eighty daies in one year and shews in what year and so by this his interest determined and Agreement with the Plaintiff by this made void but they found further as the Plaintiff made it to appear That Stallowe the Parson of Sharrington was not Absent in manner as it was alledged for that they found that he did dwell in another Town adjoyning but that he came constantly to his Parish-Church and there read Divine Service and so went away again They did also find hat he had a Parsonage-house in Sharrington fit for his habitation and whether this were an Absence within the Statute as to avoid his Lease they left that to the Judgment of the Court Yelverton Justice This is a good Non-Residency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case that he was Absent for he came four daies in every week and in his Parish-Church did read Divine Service Williams Justice upon the Statute of 13 and 14 Eliz the Parson ought not to be Absent from his Church eighty daies together in one year à Rectoria sua but this is not so here for he came to his Church and read Divine Service there every Sunday Wednesday Friday and Saturday and therefore clearly this cannot be such an Absence within the scope and intention of these Statutes as thereby to avoid his Lease Yelverton Justice he ought to be Absent eighty daies together per spatium de Octogin diebus ultra and this to be altogether at one time and so the same ought to have been laid expresly the which is not so done here for that it appears here that he was at his Parsonage-house and did read Prayers every Sunday Wednesday Friday and Saturday and so the whole Court were clear of Opinion that this Absence here as the same appeared to be was not such an Absence by the space of eighty daies in one year to avoid his Lease within the said Statute and so the Defendants Plea in Barr not good and therefore by the Rule of the Court Judgment was entered for the Plaintiff 17. An Information was Exhibited against Two Parsons by J. S. upon the Statute of 21 H. 8. cap. 13. against one of them for Non-Residency and against the other for taking of a Farm the one of them pleaded Sickness and that by the Advice of his Physicians he removed into better Air for Recovery of his health and this is justifiable by the whole Court vid. more for this Coke 6. par fo 21. in Butler and Goodall's Case The other pleaded That he took the Farm for the maintenance of his House and Family And this also is justifiable by the Opinion of the whole Court Crooke moved the Court for the Defendants That the Plaintiff was a Common Informer and that he did prefer this Information against them only for their vexation and so to draw them to compound with him as formerly he hath so done by others for which they prosecuted an Indictment in the Countrey upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses The whole Court did advise them to prosecute this Indictment against him Crooke moved for the Defendants That in regard the Informer is a man of no means that the Court would order him to put in sufficient Sureties to answer Costs if the matter went against him and that then the Defendants would presently answer the Information Williams Justice nullam habemus talem legem this is not to be done but the Rule of the Court was That the Defendants should not answer the Information until the Informer appeared in person 18. In an Action of Covenant the Plaintiff in his Declaration sets forth that the Defendant was Parson of D. and did Covenant That the Plaintiff should have his Tithes of certain Lands for thirteen years and that afterwards he Resigned and another Parson Inducted by which means he was ousted of his Tithes and for this cause the Action brought The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Residency upon which Plea the Plaintiff demurr'd in Law It was urged for the Plaintiff That the Plea in Barr was not good because it is not averred that the Defendant had been Absent from his Parsonage by the space of Eighty daies in a year for otherwise the Covenant is not void by the Statutes For the Defendant it was alledged That the pleading of the Statute of 13 Eliz. is idle but by the Statute of 14 Eliz. this Covenant is made void for by the Statute all Covenants shall be all one with Leases made by such Parsons And in this case if this had been a Lease this had been clearly void by Surrender of the Parson and so in case of a Covenant Doderidge and Houghton Justices The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law nor intended to make any Leases void which were void at the Common Law and therefore this Covenant here is not made void by the Statute unless he be Absent Eighty daies from his Parsonage Coke Chief Justice agreed with them herein They all agreed in this Case for the Plaintiff and that by the Preamble of 14 Eliz. it is shewed the intent of the Statute to be to make Covenants void within the Provision of 13 Eliz. by Absence for Eighty daies And Judgment in this Case was given for the Plaintiff CHAP. XXIX Of Abbots and Abbies also of Chauntries and of the Court of Augmentations 1. Abbot what why so called the several kinds thereof and how many anciently in England 2. A famous Abbot anciently in Ireland The manner of their Election prescribed by the Emperour Justinian Anciently the Peers of France were frequently Abbots 3. The ancient Law of King Knute concerning Abbots 4. The Abbot with the Monks making a Covent were a Corporation 5. Abbots were either Elective or Presentative they were Lords of Parliament How many Abbies in England and which the most Ancient Founded by King Ethelbert 6. Chaunter and Chauntries what and whence so called their use and end 47 belonging anciently to St. Pauls in London when and by what Laws their Revenues were vested in the Crown 7. Before King John's time Abbots and Priors were Presentative afterwards Elective 8. Six Differences taken and Resolved in a Case at Law touching Chauntries 9. Certain Cases in Law touching Lands whether under pretence of Chauntries given by the Statute to the King or not 10. What the Court of Augmentations was the end
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
The Plaintiff declared that the Rectory of St. Peters infra Turrim London was void and that the Defendant in consideration that the Plaintiff would bestow his labour and endeavour to cause or procure him to be Rector of the said Rectory promised to give him Twenty pounds and that after the said Plaintiff procured him to be Rector by the Kings Commission and notwithstanding that he had requir'd him to pay the said Twenty pounds c. and thereupon he brought his Action upon the Case in the Court of the Tower of London and upon Non Assumpsit it was found for the Plaintiff and Judgement was there given upon which the Defendant brought Error and una voce all agreed that the Judgement was erroneous for the consideration was Simoniacal and against Law and not a good consideration therefore the Assumpsit was not good the Judgement was revers'd the Atturney said that that Court was a Court-baron as appears by a Record in the time of King Henry the Sixth 8. If A. be obliged to present B. c. and he presents by Simony yet the obligation is forfeited Or if one contract with the Patrons Wife to be presented for Money and is accordingly presented by her Husband it is Simony within the Stat. of 31 Eliz and makes the presentation void For the contract of the Wife is the contract of the Husband Likewise if the Patron present one to the Advowson having taken an Obligation of the Presentee that he shall resign when the Obligee will after Three months warning this is Simony within the Stat. of 21 Eliz. cap. 16. per Curiam Also if one promises to a Man that hath a Mannor with an Advowson appendant that if he will present him c. after the then Incumbents death he will give him such a certain Sum of Money and the other agree thereto and that by agreement between them the next avoidance shall be granted to B c. who after the then Incumbents death presents accordingly this is Simony because there was a corrupt Contract for the Advowson For although the next avoidance may be bought and sold bona fide without Simony yet if it be granted to one to perform a corrupt Contract for the same it is otherwise But if the Father purchase the next avoidance and after the Incumbents death presents his Son this is not Simony Yet by Hob. Chief Justice it was held that if in the grant of the next avoidance it appears that it was to the intent to present his Son or his Kinsman and it was done accordingly it is Simony Likewise if a Mans Friend promises the Grantee of the next avoidance a certain Sum of Money and so much certain per Annum if he will present B. to the Church Quando c. and B. not knowing any thing of the Contract be presented accordingly this is Simony For if a Stranger contract with the Patron Simonaically it makes the presentation void 9. A Patron took an Obligation of the Clerk whom 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 this is not Simony otherwise if it had been to have paid it to the Patrons Son per Cur. An Obligation was made by a Presentee to a Patron to pay Five pounds per An. to the late Incumbents Wife and Children the Parson kept and enjoyed the Parsonage notwithstanding great opposition to the contrary 10. A Parson preferr'd his Bill for Tithes the Parishioner pleaded that he was presented by corruption c. and by Simony and a Prohibition was granted notwithstanding the Parson pleaded pardon of the Simony by the King and it seem'd that it was now triable by the Common Law The Church may be full or void in effect when there is a Simoniacal Incumbent yet to say the Church was full for Six Months is no plea when he was in by Simony For a Quare Impedit may be had by the rightful Patron after the Six Months against the Incumbent of an usurper that is in by Simony And the death of a Simoniacal Incumbent doth not hinder but that the King may present for the Church was never full as to the King and that turn is presented to the King by force of the Statute 11. In the Stat. of 31 Eliiz there is no word of Simony for by that means then the Common Law would have been Judge what should have been Simony and what not by which Law the Simoniack is perpetually disabled And a Covenant to present such a one made under any consideration whatever be it of Marriage or the like may be Simoniacal But if a Father in Law upon the Marriage of his Daughter do only voluntarily and without any consideration Covenant with his Son in Law that when such a Church which is in his Gift falls void he will present him to it It hath been held that this is no Simony within the said Statute 12. A Simoniacal Usurper presenting shall not prejudice the rightful Patron by giving the King the presentation The proof of Simony will avoid an Action of Tithes commenced by a Simoniack Parson who dying in possession of the Church the King loses not his presentation because the Church was not full of an Incumbent but remains void though the Simony or Penalty thereof were pardoned y Lastly all corrupt resignations and exchanges of Ecclesiastical Livings are punishable with the forfeiture of double the Sum given and received both in Giver and Taker by the said Statute but it seems this works no avoidance or disability in the publick person 13. The Patron of an Advowson before the Statute of 31. Eliz. for Simony doth sell proximam Advocationem for a sum of money to one Smith and he sells this to Smith the Incumbent After which comes the general Pardon of the Queen wherby the punishment of Smith the Incumbent is pardoned and of Smith the Patron also If the Incumbent may be removed was the Question Williams said that the Doctors of the Civil Law informed him That the Law Spiritual was that for Simony the Patron lost his Presentation and the Ordinary shall present and if he present not within six montehs then the Metropolitan and then the King Spurling Serjeant This punishment cannot discharge the Forfeiture although it dischargeth the punishment Glanvil contra and said that this point was in question when the Lord Keeper was Atturney and then both of them consulted thereupon and they made this diversity viz. Between a thing void and voidable and for Simony the Church is not void until Sentence Declaratory and therefore they held that by the Pardon before the Sentence all is pardoned as where a man committs Felony and before Conviction the King pardons him by this Pardon the Lord shall lose his Escheat for the Lord can have no Escheat
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
them offend in any of the Premisses the persons deputing them if they be Bishops shall upon Admonition of their Superiour discharge the persons exceeding the Number so limited as aforesaid But if they were deputed by Inferiour Ordinaries such Ordinaries shall be suspended from the execution of their Office until they have dismiss'd the supernumerary Apparitors by them so deputed and the parties themselves so deputed shall for ever be removed from the Office of Apparitors And in case being so dismiss'd and removed they do not desist from the execution of their said Offices they are by the first said Canon to be proceeded against and punished by Ecclesiastical Censures as persons contumacious to the Jurisdiction And finally if upon experience the number of the said Apparitors be too great in any one Diocess in the judgment of the Archbishop of Canterbury for the time being in that case he is by the said Canon impower'd to abridge them to such a number as to himself shall seem meet and expedient An Apparitor came to the Church of a Parson and said to him He is to pay Tenths to such a one at such a place four miles distant from the Church to whom the Parson did not pay them and thereupon the Bishop Certified That he refused to pay them according to the Statute of 26 H. 8. It was Resolved The Demand was not according to that Statute and the Summons to pay them not according to the Statute for the Demand ought to have been by one who hath authority to receive them which the Summoner had not And they held the Demand not good although the Bishop certified it was duly made And in the Case between the Queen and Blanch it was Resolved That the Certificate of the Bishop that the Incumbent refused to pay his Tenths is not Peremptory but Traversable and that the Demand of the Tenths must be at the house of the Incumbent and the Refusal there More 's Rep. 1225. In a Action upon the Case against the Defendant the Case was this A Summoner in the Ecclesiastical Court having a Citation against the Plaintiff Returned That he had Summoned the Plaintiff whereas in truth he never Summoned him for which the Plaintiff was Excommunicated to his great dammage It was adjudged that the Action did lie 13. By the Premisses it is manifest that the Canon is very strict and exact both in abridging the Number and redressing the Abuses incident to the Office of Apparitors which Canon in most Circumstances seems to run very parallel with that in the Provincial Constitutions Lindw Provin Constit de Censibus Procur cap. cum Apparitorum the light whereof did probably influence it into that Form wherein we now find it For by that Decree of the said Provincial Constitunions it is Ordained That a Bishop shall have unum Apparitorem Equitantem duntaxat where the Gloss well observes that by this non prohibetur Episcopo quin plures habeat pedites And every Archdeacon one in every Deanary non Equitantem sed peditem where the Bishop might also appoint Apparitors as also in Rural Deanaries Gloss ibid. verb. Duntaxat And in case more than these were Deputed or they found to offend in their Office the Penalty was as above-said Deputantes sint suspensi donec c. Deputatos ab Officio Apparitorum perpetuo suspendimus ipso facto Constit ibid. 14. Action upon the Case For that the Defendant being an Apparitor under the Bishop of Exeter maliciously and without colour or cause of suspicion of Incontinency of his own proper malice procured the Plaintiff Ex Officio upon pretence of Fame of Incontinency with one Edith whereas there was no such Fame not just cause of Suspicion to be cited to the Consistory Court of Exeter and there to be at great charges and vexation until he was cleared by Sentence which was to his great discredit and cause of great Expences and Losses for which c. upon Not guilty pleaded and found for the Plaintiff it was moved by Ashley Serjeant in Arrest of Judgment That in this Case an Action lies not For he did nothing but as an Informer and by virtue of his Office But all the Court absente Richardson held That the Action well lies For it is alledged That he falso malitiose caused him to be Cited upon pretence of Fame where there was no offence committed And avers That there was not any such Fame so as he did it maliciously and of his own head and caused him to be unjustly vexed which was to raise gain to himself whereupon they conceived That he being found guilty for it the Action well lies And therefore Rule was given to enter Judgment for the Plaintiff unless other cause was shewn And upon a second motion Richardson Ch. Justice being present Judgment was given for the Plaintiff The Consistory of the Bishop may in some Cases enjoyn Penance Where Penance is enjoyned there may be Commutation but there may not be Commutation for Penance where none is enjoyned Commutation for Penance agrees with the Customes used in the Ecclesiastical Law justified in the Common Law in the Statute of Circumspecte agatis in the time of Ed. 1. and Articuli Cleri in the time of Ed. 2. Vid. Mich. 21. Jac. B. R. Dr. Barker 's Case in Camera Stellata Roll's Rep. 15. Commissary Commissarius is a Title of Ecclesiastical Jurisdiction adapted to such one as doth exercise the same in such remote places of the Diocess and at such distance from the Bishops chief Consistory as that his Chancellor cannot without too great a prejudice conveniently call the Subjects to the same The duty of such Commissary or Officialis Fâ—ranei is to officiate the Bishops Jurisdiction in the remoter parts of the Diocess or in such Parishes as are the Bishop's peculiar and exempt from the Archdeacon's Jurisdiction The Authority of the Commissaries of Bishops is only in some certain place of the Diocess and some certain causes of the Jurisdiction limited unto them by the Bishops for which reason the Law calls them Officiales Foraneos quasi Officiales astricti cuidam foro Dioeceseos tantum Gloss in Clem. de Rescript And by the Canons and Constitutions Ecclesiastical no person may be a Commissary or Official under the Age of 26 years being at least a Master of Arts or Bachelor of Law Yet in the Argument of Buries Case for a Divorce the 5 Rep. 98. there was cited 35 Eliz. B. R. rot 605. That if a Lay-man be made a Commissary by the Bishop it is good until it be undone by Sentence although that the Canon says That he ought to be a Doctor or a Bachelor of Divinity But 21 H. 8. hath limited That a Doctor of the Civil Law may be a Commissary 16. Where a Commissary citing many persons of several Parishes to appear at his Visitation-Court Excommunicated them for not Appearing a Prohibition was granted because the Ordinary hath not
power to cite any to that Court but the Church-Wardens and Sides-men and those he may Impannel and give Articles to them for to enquire as the Justices of Assize Vid. N. B. 41. 17. The Dean of the Deanary of Wolverhampton annexed to the Deanary of Windsor being a Peculiar and having Ordinary Jurisdiction makes a Commissary by his Deed which is Confirmed by the Chapter The Dean dies The question was if that was good to bind his Successor By Doderidge That such a Jurisdiction is Judicial and that Grant is but a Commission and Authority all times remaining in the Ordinary True it is That Ecclesiastical Jurisdiction in Judicial Acts may be executed by a Substitute but in Law they are the Acts of them who Substitute the other Vid. 11 H. 4. 64. a. 7 E. 4. 14. 20 H. 6. 1. That a Commissary may Excommunicate and prove a Testament But that shall be made in the name of the Ordinary 20 E. 3. And a Grant of that by the Bishop is not good but during his life and shall not bind the Succâ—ssor For the Law hath appointed that he shall exercise that Jurisdiction Sede vacante c. The Grant being void cannot be made good by the Confirmation of the Chapter Coke Chief Justice If that should be a good grant to bind the Successor then the Successor cannot remove him And yet the Successor shall answer for the Acts and Offences of the Commissary which would be too hard 18. In Walker's Action upon the Case against Sir John Lambe For disturbance of the Plaintiff in exercising of the Officialty of the Archdeaconry of Leicester granted by the Archdeacon of Leicester and of the Office of Commissary of the Bishop of Lincoln Upon Not guilty pleaded a special Verdict was found That there were Ancient offices granted by c. and Offices of Judicature always granted to one person for life until 1609 and in 30 Eliz. so granted to Dr. Chippindale and after in 1609 granted to him and one Ed. Clerk for their Two lives no Surrender being actually made by Dr. Chippendale Afterwards 1614 both Offices were granted the one by the Archdeacon the other by the Bishop to Sir Jo. Lambe and to the said Ed. Clerk and these Grants confirmed by the Dean and Chapter That in An. 1622. Dr. Chippendale died and afterwards the Archdeacon who granted that Office and the Bishop who granted the Office of Commissary died and the Bishop of Lincolne who now is and the now Archdeacon by several Patents granted these Offices to the Plaintiff who was at the time of the Grant of the Patent a Lay-person and Bachelor of the Civil Law only And they find the Stat. of 37 H. 8. c. 17. That Lay-persons married or unmarried being Doctors of the Civil Law may be Commissaries Officials Scribes or Registers and that the Plaintiff exercised these Offices and the Defendant disturbed him Upon this the matter being argued at the Bar was reduced only to these Two Questions 1 Whether the Patent to the Plaintiff being a Lay-person and not a Doctor of the Law were good or restrained by the Statute of 37 H. 8. And as to that point all the Court conceived The Grant was good for the Statute doth not restrain any such Grant And it is but an affirmance of the Common Law where it was doubted if a Lay or Married person might have such Offices and to avoid such Doubts this Statute was made which explains That such Grants are good enough and it is but an Affirmative Statute and there is no restriction therein And although Doctors of the Law though Lay-persons or Married shall have such Offices yet this is not any restriction That none others shall have them but Doctors of the Law and the Statute mentions as well Registers and Scribes as Commissaries and that a Doctor of the Law shall have them yet in Common experience such persons as are meerly Lay and not Doctors have enjoyed such Offices And for this very point was a Case in this Court Hill 35 Eliz. Rot. 181. between Pratt and Stock where upon Demurrer this Statute was pleaded against the Plaintiff to whom a Commissaryship was granted being but a Bachelor of Law and he having granted Administration the Grant was adjudged good and the Book of Entries 484 489. was allowed good wherefore they Resolved the Grant was well enough And it was also Resolved That where an Officer for life accepts of another Grant of the same Office to him and to another it is not any Surrender of the first Grant The Second point was Whether the office of the Officialty of the Archdeaconry and the office of the Commissary of the Bishop be grantable by the Statutes of 1 Eliz. and 13 Eliz. because it was pretended they were not parcel of the Possessions of the Bishoprick or Archdeaconry so as they could have any profits by them and then the Statute doth not restrain the Grants of them But all the Court Resolved They were within the words and intent of the Statutes for they be Hereditaments and are pertaining unto them And that a Grant of these Offices to Two where they were only grantable to One for life and being granted in Reversion it is a void Grant by the Statutes against the Successors For the Statutes restrain all Grants of any thing to be avoidable against the Successor besides Grants of necessity and Leases for Three lives or 21 years where the ancient Rent is reserved And all other Grants as well of Offices as of other things not warranted by the Statutes are made void as against the Successors Vid. Coke 10. fo 60. the Bishop of Salisbury's Case Coke 5. fo 14. and a Case betwixt Vaughan and Crompton 14 Jac. at the Assizes before the Justices of the Assize for the Office of the Registership in Suffolk and between Johns and Powell for the Registers place of Hereford where it was Adjudged That such Offices granted in Reversion were void whereupon Rule was given That Judgment should be enter'd for the Plaintiff unless other cause were shewn And afterward being moved again Judgment was given for the Plaintiff 19. Noy Attorney Reports the foresaid Case of Dr. Sutton in this manner viz. That he was deprived of the office of Official of Gloucester by the Commissioners 3 Jac. appointed to examine the defects of Chancellors and that he was not read in the Canon or Civil Law He said That time out of mind c. the Bishops have used in their Diocesses to bestow the Chancellorship and that A. the Bishop of c. had made him Chancellor by Deed and that was Confirmed by the Dean and Chapter by which he had a Frank-tenement in that Office c. And Mr. Glanvile moved for a Prohibition but it was denied by the Court for it is lawful for the Commissioners to deprive for Insufficiency that being within their Commission But in a Suit in the Ecclesiastical Court for the Profits of that
Custome or the Parson by virtue of a Canon shall chuse the Churchwarden and whether Prohibition lies in that case 22. Whether Churchwardens as a Corporation may prescribe to take Lands to them and their Successors to the use of the Church 1. CHurchwardens or Guardiani Ecclesiae are certain Officers Parochial annually elected or chosen by and with the consent of the Minister and a select number of the chief Parishioners according to the Custome of the place to look to the Church and Church-yard and to take care of the concernments thereof and of such things as appertain thereto as also to observe and have an inspection into the Behaviour Lives and Conversation of their Parishioners touching such faults and disorders as are within the cognizance and censure of the Ecclesiastical Jurisdiction These Officers are a kind of Corporation enabled to sue and be sued for any matters or things belonging to the Church or Poor of their Parish and have as their Assistants certain Side-men or Questmen who according to the custome of the Parish are yearly likewise chosen to assist the Churchwardens in the Enquiry and presenting such offenders to the Ordinary as are within the Ecclesiastical cognizance and censure aforesaid for which they are not to be sued or troubled at the Law by any such Offenders so presented as aforesaid nor are they obliged to Present oftner than twice a year except it be at the Bishop's Visitation yet they may present as oft as they shall think meet if good occasion shall so require but they may not on pain of being proceeded against by their Ordinaries as in cases of wilful Perjury in Courts Ecclesiastical willingly and wittingly omit to present such publick Crimes as they knew to have been committed or could not be ignorant that there was then a publick same thereof Moreover the Old Churchwardens are to make their Presentments before the New be Sworn till which time the Office of the old continues the usual time for the New Churchwardens to enter upon their Office is the first week after Easter or some week following according to the direction of the Ordinary before which the old Churchwardens shall exhibit the Presentments of such enormities as happened in their Parish since their last Presentments and shall not be suffered to transmit or pass over the same to those that are newly chosen By the Ninetieth Canon the choice of Churchwardens Questmen Sidemen or Assistants is to be yearly made in Easter-week and that by the Joynt-consent of the Minister and the Parishioners if it may be otherwise the Minister to chuse one and the Parishioners another who at their years end or within a month next after shall in the presence of the Minister and the Parishioners make a just Account of what they have received and disbursed for the use of the Church and shall deliver over what remains in their hands belonging to the Church unto the next Churchwardens by Bill Indented 2. One brought Action on the Case against Churchwardens for a false and malicious Presentment of him in the Spiritual Court and found for the Defendants They prayed double Costs on the Statute of 1 Jac. But Jones Crook and Berkley Justices denied it for that the Statute doth not extend to Churchwardens for things of their office in Ecclesiastical Causes They have their Action of Trespass at the Common Law for such things taken away out of the Church as belonged to the Parishioners in reference to the Church And the Release of one of the Churchwardens is no Bar in Law to the other If one take away the Chalice or Surplice out of the Church Action of Trespass lieth against him at Common Law and not in the Ecclesiastical Court So if one lay violent hands on an Ecclesiastical person an Action lies in the Ecclesiastical Court but he shall not there sue for dammages If the Organs or Parish-Bible or the like be taken away out of the Church the Action lies at the Common Law and not in the Spiritual Court for the same for the Churchwardens may have their Action at Common Law in that case But if the Parson take away out of the Church the Scutcheon or Banner of some person deceased his Widow if she did put it there and it be taken away in her life time may have her Action of Trespass at Common Law or after her decease the Heir may have the same Action 3. Trespass brought by the Churchwaâ—dens of F. and declared That the Defendant took a Bell out of the said Church and that the Trespass was done 20 Eliz. It was found for the Plaintiffs It was moved in Arrest of Judgment that it appears by the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have Action and Actio personalis moritur cum persona Vid. 19 H. 6. 66. But the old Churchwardens shall have the Action Coke contrary and that the present Church-wardens shall have the Action and that in respect of their Office which the Court granted And by Gawdy Churchwardens are a Corporation by the Common Law Vid. 12 H. 7. 28. by Frowick That the New Churchwardens shall not have an Action upon such a Trespass done to their Predecessors Contrary by Yaxley Vid. by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass 4. It is the duty of Churchwardens not only to take care of the Concernments of the Church and to present Disorders as aforesaid but also to provide Bread and Wine against the Communion the Bible of the largest Volume the Book of Common Prayer a decent Pulpit a Chest for Alms Materials for repairing the Church and fencing the Church-yard and the like all at the Parish-charge and shall what in them lies prevent the prophanation of Churches by any usage thereof contrary to the Canons It was agreed by the Court in Robert's case That a Tax for the Church cannot be made by the Churchwardens only Hetley's Rep. 5. In Butt's Case Moore Serjeant moved at Court for a Prohibition because where the custome of the Parish or Village was that the Parishioners have used to elect two Churchwardens and at the end of the year to discharge one and elect another in his room and so alternis vicibus c. By the New Canon now the Parson hath the Election of one and the Parish of the other and that he that was elected by the Parishioners was discharged by the Ordinary at his Visitation and for that he prayed a Prohibition Et allocat as a thing usual and of course For otherwise by Hubbard the Parson might have all the Authority of his Church and Parish The like Case to this we have elsewhere reported viz. The Parson and Church-wardens in London by the Custome are a Corporation and the Parishioners time out of mind c. have used at a
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
Form thereof according to the Canon Law what required of the Clerk in order thereto and his Remedy in case the Ordinary denies him such Institution as he may claim by Law 9. Matters of Institution properly cognizable in the Ecclesiastical Courts yet in certain Cases not exclusively to the Common Law or Temporal Jurisdiction 10. Institution gives the Parson jus ad rem not jus in re 11. Whether Institution without Induction works a Plenaâ—ty also whether it be good being Sealed with another Seal and done out of the proper Diocess The difference between the Common Law and the Canon Law as to a Coveat entered before Institution 12. Whether Suit may be in the Ecclesiastical Court to remove an Incumbent after Induction 13. Whether the First-Fruits be due upon the Institution before Induction 14. A Case at Common Law touching Resignation and whether it may be made Conditionally 15. A Case touching the Rightful Patron 's Presentation after the Induction of another by Vsurpation 16. What Induction is and the Bishop's Order therein 17. Induction is a Temporal not Spiritual Act In what manner it is to be executed 18. A Caveat entered in the Life-time of an Incumbent is void 19. In what Case an Induction made by a Minister not resident within the Archdeaconry may be good 20. Institution to a Minor and Vnder-age is meerly void 21. Whether after Induction the Institution may be questioned in the Ecclesiastical Court 22. Whether Incumbency be triable only at Common Law 23. In what Court the validity of Induction is determinable 1. EXamination is that Trial or Probation which the Bishop or Ordinary makes before his Admission of any person to holy Order or to a Benefice touching the qualification of such persons for the same respectively So that there are Two certain times or seasons especially wherein this Examination is required the one before an Admission to Holy Orders the other before an Admission to a Benefice The former of these is expresly enjoyned by the 35th Canon Ecclesiastical whereby it is required That the Bishop before he Admit any person to Holy Orders shall diligently Examine him in the presence of those Ministers that shall assist him at the Imposition of hands or in case of any lawful Impediment of the Bishop then the said Examination shall be carefully performed by the said Ministers provided they be of the Bishops Cathedral Church if conveniently it may otherwise by at least Three sufficient Preachers of the same Diocess And in case any Bishop or Suffragan shall Admit any to Sacred Orders who is not Examined as is before ordained then shall the Archbishop of the Province having notice thereof and being assisted with one Bishop suspend the said Bishop or Suffragan from making either Deacons or Priests for the space of Two years So also when the Clerk is Presented by the Patron of the Advowson before he be Admitted as Clerk to serve the Cure the Ordinary is to Examine him of his Ability For if upon his Examination he be found unable to serve the same or be Criminous the Ordinary may refuse to Admit and Institute him into the Benefice By the Ancient Cannons the Bishop hath Two months time to enquire and inform himself of the sufficiency and quality of every Clerk Presented to him as appears by the Canon in 1 Jac. cap. 95. But by the said Canon it is Ordained That the said Two months shall be abridged to 28 days only Upon sufficient enquiry and Examination the Ordinary may accept or refuse the Clerk Presented and regularly all such matters as are causes of Deprivation are also causes of Refusal but for a Presentce to have another Benefice is no cause of Refusal for that is at his own peril and possibly the Second Benefice is more worth than the former which only is void in such case 2. If the Bishop doth demand of the Clerk his Letters of Orders and Letters Testimonial of his good behaviour and the Clerk requires time to shew them as the space of a week or the like because he hath them not there with him and the Bishop doth thereupon Refuse him to the Church and Presents another the Bishop in such case hath been adjudged to be a Disturber for the Statute of 13 Eliz. doth not compel the Clerk to shew his Orders nor Letters Testimonial of his good Behaviour And so it was Adjudged Yet by the 39th Canon it is by way of Caution expresly Ordained That no Bishop shall Institute any of a Benefice who hath been Ordained by any other Bishop except he first shew unto him his Letters of Orders and bring him a sufficient Testimony of his former good life and behaviour if the Bishop shall require it 3. Examination of the Clerk is to be done at a convenient time within the Six months for the Ordinary cannot refuse to Examine the Clerk during all the Six months and so suffer a Lapse to incurr to himself for by so doing the Patron should lose his Presentation and the Ordinary take advantage of his own wrong But if the Ordinary when the Clerk comes to be examined Sedet circa curam Pastoralem he is not then obliged to leave the business in hand and presently Examine the Clerk but he may appoint a convenient time and place for the Examining of him This Examination by the Diocesan touching the Conversation and Ability of such as were ordained to Peach the Word of God or Presented to a Benefice is enjoyned by the Provincial Constitutions Lindw de Haereticis cap. 1. 4. A Quare Impedit was brought by B. against the Bishop of Rochester who pleads that he claims nothing but as Ordinary and yet pleads further That the Clerk which the Plaintiff Presented had before contracted with the Plaintiff Simmiacally and therefore because he was Simoniacus he refused and that the Church was then void and so remained void whereupon the Plaintiff had a Writ to the Archbishop of Canterbury who returned that before the coming of this Writ viz. 4. July the Church was Full of one Dr. Grant ex Collatione of the said Bishop of Rochester who had Collated by Lapse and this Return was adjudged Insufficient First it is clear That though the Six months pass yet if the Patron Present the Bishop ought to Admit although it be after the Title devolved unto the Metropolitan And it seems also Reason that he ought to Admit though that the Title by Lapse be accrued to the King for he claims it as Supream Ordinary Vid. Dyer 277. quaere But in this Case the Bishop who is the Defendant is bound by the Judgment and the Writ is notwithstanding the claim of the Bishop that he Admit the Clerk for the Bishop ought to execute the Process of the Court It was urged by Serjeant Henden that there is a Canon in Lindwood That if the Church be vacant when the Writ comes to the Bishop that he is bound to execute
and are at issue upon the Modus which is found for the Defendant and Consultation granted whereupon Judgment was given in the Ecclesiastical Court against Bowry upon which B. appealed and prayed a new Prohibition and Noy moved for a Consultation because that a Prohibition and an Attachment upon it are but one Suit for the Contempt of the party in bringing his Suit in another Court and translating this from the Kings Court and when it is once Tried for the Desendant the same thing shall not be Tried again Note That in this Case upon the Statute of 50 E. 3. 4. it was agreed by the Court That a Prohibition awarded and afterwards Consultation granted that upon the same Libel no Prohibition shall be granted again but if there be an Appeal in this Case then a Prohibition may be granted but with these differences 1 if he that Appeâ—ls pray the Prohibiâ—ion there he shall not have it for then Suits shall be deferr'd in infinitium in the Ecclesiastical Courts 2 if the Prohibition and Consultation were upon on the body of the matter and the substance of it for otherwise he shall be put many times to try the same matter 20. The Lord Rich was seized of Hadley Park and of all the Tithâ—s thereof and payed for the Tithes but one Buck in the Summer and a Doe in the Winter for 30 years past The Park was disparked and turned into arable Land and the Parson would not receive this Fee-Buck and Doe but would have Tithe-Corn and thereupon sued in the Ecclesiastical Court and he brought a Prohibition And Catlin said That â—e need not pay other Tithes but Buck and Doe for although they be not Tithable yet may they be paid by Composition and he may not take them but they arâ— to be delivered to him And in like manner Partridges and Pheasants in a Garden are not Tithable yet may they be paid in lieu of Tithes and shall be brought dead to the Parson and although there be no Park yet may he give a Buck out of another Park and perhaps it may be made a Park again 21. The Case was A Church in which there had been a Parson and Vicar time out of mind and the Parson used to have the Great Tithes and the Vicar the Small and for the space of forty years last past it was proved that the Parson had Tithes paid him out of a Field of twenty acres of Corn and now the Field is sowed with Saffron and the Vicar sued for the Tithes of Saffron in the Ecclesiastical Court and the Parson had a Prohibition Coke I conceive the Parson shall have the Tithes for by the Statute of 2 H. 6. it is Enacted That Tithes shall be paid as hath been used the last forty years and this hath been alwaies Tithable to the Parson and although the ground be otherwise employed yet the Parson shall have the Tithes And so was it in Norfolk in the case of a Park where the Parson prescribed Pro modo Decimandi to be paid 3 â— 4 d. for all Tithes arising out of the said Park and although the Park was afterwards converted to Arable yet no other Tithes shall be paid Popham It hath been adjudged otherwise in Wâ—oth's Case in the Exchequer But the Law is clearly as hath been said and the difference is when the Prescription is to pay so much money for all Tithes or when the Prescription is to pay a shoulder of every Buck or a Doe at Christmas for there if the Park be disparked Tithes shall be paid for Tithes are not due for Venison and therefore they are not Tithes in specie And I conceive that Tithes of Saffron-heads shall be comprehended under Small Tithes and although the Tithes of this Field have been paid to the Parson yet it being converted to another use whereof no gross Tithes do come the Vicar shall have the Tithes And so if arable Land be converted into an Orchard the Vicar shall have Tithes of the Apples and so if the Orchard be changed to Arable the Parson shall have Tithes Quod Fenner concessit 22. In one Hawkin's Case Libel was in the Ecclesiastical Court for Tithes for Lambs for seven years And there he proved payment by one Witness and a Prohibition was granted for Non-allowance of that Proof 23. On the Stat. of 2 Ed. 6. c. 13. for setting out of Tithes the Case was this Corn was set out â—or Tithes and the Owner of the Land took the Corn Dammage feasant but in the Declaration it is not shewn how long the Corn remained on the ground And by the Court it is not good inasmuch as it doth not appear that the Owner of the Land had any Dammage at all for he doth not shew how long the Corn remained on the ground And the usual course in such cases is if Tithe be set out and the Parson take it not away in due time the party shall have an Action on the Case By the Court a man cannot distrain Shocks of Corn but he may distrain a Stack Dammage feasant But in this case it is not shewn how long it remained on the ground and therefore it doth not appear that he was damnified And so after the Tithe is clearly set out the Parson may by the Statute have an Action of Trespass if any take them away but if only a meer Stranger set out the Tithe that settles no property in the Parson so as that he cannot have any Action for the taking thereof away 24. It seem'd clear to Noy that if Two persons have portions of Tithes by halves in one Parish the Stat. of Ed. 6. that appoints Tithes to be set out doth not in that case oblige the Parishioner to divide the Tithes by halves and to set out their parts singly but the Parishioner ought only to set out the Tenth insomuch that if the Tithe be of one Lamb the Parishioner cannot divide it And it hath been Adjudg'd that the Parishioner is not bound to divide the Tithe into Moities but the Parsons shall divide it between themselves 25. Noy surmized against a Libel for Tithe-Sheaves that the Parishioners are at the charges to bind the Corn in Sheaves and for the better dividing thereof they use to make it up into Sheaves and when it is made into Shocks they put thereof into a Stack for the Tithes And for that the Parishioners have been at this pains they have used to be discharged of Tithes for the odd Sheaves when they will not make a Stack Adjudg'd a good Custome and a Prohibition was granted because the Parishioners therein do more than of Common right they are obliged unto 26. The Case touching Tithe of Glebe-Land Reported as aforesaid by Leonard to be between Stile and Miller is the same with that Reported by Owen to be between Stile and Miles misprinted But the Case was this Stile Parson did suggest
Rule for the Judges in that Court to proceed also And then the Plaintiff may if he will have a new Prohibition against the Executors c. 46. In Norton's Case Finâ—h Recorder said de Communi jure for Estovers burnt in an House Tithes ought not to be paid by the Common Law there was not any Tithes paid for Wood And although the Statute of 25 E. 3. gives a Prohibition for Timber yet Vnder-woods were discharged of Tithes Vid. Dr Stud. 171. It is express that Estovers are not Tithable because they are not renewing every year and it is parcel of the Inheritance for to destroy all the Underwoods is Waste c. Dawley's Case was Resolved for the Wild of Sussex and Mich. 13 Jac. B. R. in the Case of Porter and Dyke for the Wild of Kent of the same Prescription Resolved to be good and so is the Common Experience that a whole County may Prescribe so And the reason is for that by the Common Law it was not due but by the Constitution of Winchelsey Lindwood 104. it was Ordained to be paid for then the Prelates imputed a great Pestilence that then was for the negligence of paying Tithes and appointed Tithes of Wood. And the Commons were desirous to have the Statute of Sylva c. otherwise explained than the Clergy declares it for they say that they ought not to pay Tithes of any Wood that is of the growth of ten years Hutton Wood is Tithable in their nature and then there may be a Custome to discharge them And the Case of Hearthpeny cannot be answered for if he Sues for the peny a Prohibition shall not be granted quod concessum fuit per Crook Yelverton But of things not Tithable Tithes of them cannot be sued without alledging a Custome Crook It is known that Hearthpeny is good by Prescription This Case is when there is not Land belonging to the House so that the Parson is not answered for his Tithes another way But when there are Ten Servants kept for the maintaining it then by the Law of the Land it appears that Tithes ought not to be paid although Custome had been alledged it is nothing to the purpose As if a Custome be alledged to pay 4 d. for every Acre in discharge of Tithes and the Verdict find 3 d. no Consultation shall be granted Hutton the Herbage of Barren Cattel is Tithable because there is a Custome which discharges those that are for the Cart. And he said That the Custome only makes that Legem terrae And he cited Dr. Grauut's Case He Libels for Tithes of a House and the party brought a Prohibition and alledged Modum Decimandi c. And it was alledged in Arrest of Judgment that Houses were not Tithable de Communi jure and yet a Consultation was granted c. 47. A Case between Stone and Walsingham having been formerly in the Court touching Tithes the Case was again moved in Court which was that they agreed de anno in annum so long as the one should be Parson and the other Parishioner Si ambabus partibus tam diu placuerit he should retain his Tithes for 6 s. 8 d. per An. And Richardson Justice said and it was not denied That the Suggestion is naught for the uncertainty of it and a Prohibition cannot be granted upon that For the words de annâ— in annum make an Estate for a year and the next words make an Estate for Life and the last words but an Estate at Will and what shall be Traversed here It appears that for Years it is good without Deed but not for life and if it be but at Will when the other demands his Tithes the Will is determined But at another day the Suggestion was made That he made several Agreements with his Parishioner that he pay 6 s. 8 d. for his Tithes for four years And then a Prohibition was granted Harvey sufficit If an Agreement be proved for these four years 48. Sâ—â—t moved for a Prohibition That whereas he had twenty Acres of Wheat and had set out the Tenth part for Tithe the Defendant pretending that there was a Custome of Tithing that the Owner should have fifty four Sheaves and the Parson five and so he sued for Tithes for that there was no such Custome And the Court said That the Modus decimandi must be sued for as well in the Ecclesiastical Court as for the Tithe it self And if it be allowed between the parties they shall proceed there but if the Custome be denied it must be tried at the Common Law For if it be found for a Custome Consultation must be granted if not then the Prohibition is to stand 49. Napper against Steward the Parson had a Prohibition against divers of his Parishioners that Libelled in the Ecclesiastical Court to make Proof by Witness of divers manner of Tithing in perpetuam rei memoriam 50. A Prohibition for H. against E. Farmer of the Rectory of S. and prescribed That all Tenants and Occupiers of Meadow had used to cut the Grass and to straw it abroad called Tetting and then gathered into Wind-rows and then put it into Grass-Coâ—ks in equal parts without any fraud to set out the Tenth-Cock great and small to the Parson in full satisfaction as well of the first as of the latter Math Upon Traverse of the Custome it was â—ound for the Plaintiff and exception was taken That the Custome was void because it imports no more than what every Owner ought to do and so no recompence for the two Maths But the Court gave Judgment â—or the Plaintiff for Dismes naturally are but the Tenth of the Revenue of any Ground and not of any labour or Industry Where it may be divided as in Gross it may though not in Corn and in divers places they sâ—t out the Tenth acre of Wood standing and so of Grass And the Jury having found his Form of Tithing there it is sufficient and the like Judgment upon the like Custome was in the Kings Bench. Pasch 2 Jac. Rot. 191 or 192. inter Hall Symonds 51. In Johnson's Case if a Prohibition be granted upon matter at Common Law as upon a Personal Agreement between Parson and Parishioner for his Tithes and not upon matter within the Stat. of 2 E. 6. 13. the Suggestion shall not be Proved within the Six months as the Statute limits and as it is Agreed by the whole Court 52. The Defendant here in the Prohibition Libels for Tithes of Hay in the Ecclesiastical Court The Plaintiff suggests that the Hay was growing upon Greenskips Deals and Headlands and that there is a Custome that the Parishioners in a Meadow there used to make the Tithe-Hay for the Parson and in consideration of that to be discharged of all Tithes of Hay growing ut supra and also that for the Hay of the Land no Tithe ought to be paid of such Hay but does
not averr that that Hay was growing upon Greenskips c. And an Exception was taken by Henden 1. That the Exception is double the Custome and the Common Law And by Yelverton That is not material for you may have twenty Suggestions to maintain the Suggestion of the Court but Richardson was against that that a Suggestion might be double here for the Suggestion of the Common Law is a Surplusage As in Farmer and Norwich's Case here lately One Prescribes to be discharged of Tithes where the Law discharged him and so was discharged by the Common Law Second Exception is That he doth not apply the Custome to himself in the Suggestion for he that lays the Custome does not shew that the Hay grew upon the Skips upon which a Plough might turn it self and for this cause by the whole Court the Suggestion is naught And here Richardson moved how that Two should joyn in a Prohibition Yelverton If they are joyned in the Libel they may joyn in the Prohibition and that is the common practice of the Kings Bench. Richardson The wrong to one in the Ecclesiastical Court by the Suit cannot be a wrong to the other Hutton They may joyn in the Writ but they ought to sever in the Declaration to which Harvey agreed Yelverton The Prohibition is the Suit of the King and he joyns tant as in a Writ Richardson But it is as the Suit of the party is and if any joyn here I think good cause of a Consultation It is against the profit of the Court to suffer many to joyn And it is usual in the Case of Customes of a Parish in debate to order Proceedings in the two Prohibitions and that to bind all the Parish and Parson And it was said by them all That the Consideration of making Hay is a good Discharge because it is more than they are bound to do 53. F. sued V. for Tithes of Hay which was upon Land that was Heath-ground and for Tithes of Pidgeons And by Richardson If it was meer Waste-ground and yield nothing it is excused by the Statute of payment of Tithes for seven years But if Sheep were kept upon it or if it yield any Profit which yield Tithes then Tithe ought to be paid As the Case in Dyer And for the Pidgeons which were consumed in the House of the Owner he said and for Fish in a Pond Conies Deer it is clear that no Tithes of them ought to be paid of Right wherefore then of Pidgeons quod nemo dedixit And a day was given to shew cause wherefore a Prohibition should not be granted And the Court agreed That it was Felony to take Pidgeons out of a Dove-house And afterwards a Prohibition was granted but principally That the Pidgeons were spent by the Owner But by Henden They shall be Tithable if they be sold 54. P. the Vicar of Eaton in the County of Oxon Sues C. the Parson Impropriate in the Ecclesiastical Court in Oxford pro Minutis Decimis C. sues a Prohibition against the Vicar upon a Surmize of a Prescription P. comes and pleads the first Endowment made An. Dom. 1310. by which the Minute Tithes were allotted to the Vicar C. demurrs and Adjudged for the Plaintiff for the Parson cannot Prescribe against the first Endowment 55. In Debt upon the Stat. of 2 E. 6. for not setting out of Tithes the Plaintiff declares That the Defendant was seized of the Lands in question within that Parish and that the Tithes did belong to the Parson and Vicar viz. Two parts to the Parson and the Third part to the Vicar or their Farmers payable in specie for 40 years last past that the Plaintiff was Farmer proprietary of the Tithes to the Parson and Vicar spectant and shews the value of the Tithes due and demands the treble value the â—â—â—ndant pleads Niâ—il debet per patr and it was found for the 〈◊〉 It was now moved in Arrest of Judgment because the Plaintiff ought to have brought two Actions as the Parson and the Vicar ought for their several parts But Resolved that the Action is well brought for it is a Personal and one entire Debt for one wrong 56. Bott sues a Prohibition against Sir Edward B. and suggests That the Defendant is Parson Impropriate of W. and that time out of mind there hath been a Curate of an Incumbent by the appointment of the said Rector who administred the Sacraments c. And that the Custome of that Parish time out of c. was that the Curate should have 〈◊〉 Tenths renewing within that Parish except Decimas graâ—â—â—â—m which were paid to the Parson and that every Parishioner who had so paid the Tenths to the Curate was discharged against the Parson And that notwithstanding that c. Sir Edward B. had sued him c. And now he prays a Prohibition and had it but after that Surmize was adjudged insufficient without Argument by the Court and a Consultation granted for such Curate cannot Prescribe against his Master that may remove him at his pleasure And for that reason it was not a good Prescription for the Parishioners 57. Goodwin being Vicar sues in the Ecclesiastical Court the Dean and Chapter of Wells bâ—ing Parson of a Church for a Pension and they pray a Prohibitionâ— and it was denied For that Pension is a Spiritual thing for which the Vicar may Sue in the Spiritual Court Note that they entitle themselves to that Parsonage by a Grant of H. 8. who had it by 31 H. 8. of Dissolutions 58. It was said by Hutton in Spencer's Case That by the Civil Law the Parishioner ought to give notice to the Parson when the Tithes are set forth But it was adjudged That the Common Law doth not so oblige a man 59. B. by his Deed Compounds for Tithes and after Sues for them in the Ecclesiastical Court by Popham and Gawdy That an Action upon the Case lies Vid. E. 4. 13 Mich. 4 Jac. The Lady Waterhouse was sued for the Tithes of Trees whereof none were due c. there an Action upon the Case does not lie for the Parson or person may well be ignorant of what things are due otherwise he Sues against his own knowledge 60. To have a Prohibition the Surmize was That the Inhabitants of D. of which he is an Inhabitant have paid un mod decimand c. And they were at Issue and he proved only that he himself had paid it and yet well And no Consultation for every particular is included in the general and proved by it And it appears sufficient matter for a Prohibition and to oust a Spiritual Court of their Cognizance 2 Agreed that where the Statute appoints Proof of the Surmize to be by Two it is sufficient if Two affirm that they have known it to be so or that the Common Fame is so 61. Upon a Surmize by a Parishioner That he had Compounded
Decimandi but the same shall continue when the same is made again into Hay And when it is sowed with Corn the Parson shall have Tithen in kind and when the same is Hay the Vicar shall have the Tithes-Hay if he be endowed of Hay And where a Suit was in the Spiritual Court by a Defendant Vicar of A. for Tithes a Prohibition was prayed upon the Plaintiffs Plea there of a Modus Decimandi to pay so much yearly to the Parson of A. in discharge of his Tithes It was the Opinion of the Court That this Modus between him and the Parson will not discharge him from payment of Tithes to the Vicar and therefore the Court granted a Consultation Also if a Prescription be laid to pay a Modus Decimandi to 100 Acres or to several things if there be a failure of one Acre or of one thing it is a failure of the whole Prescription Monasteries under 200 l. per Ann. commonly called the Lesser Monasteries of the Order of Gistertians and Praemonstratenses that were Dissolved and came to the Crown by the Statute of 27 H. 8. were not discharged of the payment of Tithes by the Statute of 31 H. 8. c. 8. by which Statute those of 200 l. per Ann. and upwards commonly called the Greater Abbies were Dissolved and whereby it is Enacted That the King and his Patentees having any Monasteries c. or any Mannors Lands c. belonging to them should enjoy the same discharged of the payment of Tithes in as ample manner as the said Abbots c. who were discharged of Tithes either by Bulls Compositions Prescription Order or Unity of Possession And albeit the Lands of the said Lesser Monasteries are not within the benefit of the said Statute of 31 H. 8. to be quit of Tithes yet they ought to enjoy all such Priviledges as are annex'd to the Lands for which reason they shall in whose possession soever they are be exempted from the payment of Tithes by real Compositions and Prescriptions de Modo Decimandi though not by Prescriptions de non Decimando Unity of Possession Order or Popish Bulls in all which Cases the Parsons and Vicars have the advantage by the Dissoltion of all those Monasteries and Abbies which were Dissolved by the Statute of 27 H. 8. For these Lesser Monasteries under 200 l. per An. which were as aforesaid Dissolved by the Statute of 27 H. 8. lost their Priviledge of being discharged of the payment of Tithes Nor did the Priviledge extend to any Lands other than such as they had at the time of the Council of Lateran and only for such time as the same remained in their own possessions and only for such Lands as were in their own manurance It is said in Dickenson's Case against Greenhowe That Monks are not of Evangelical Priesthood viz. capable of Tithes in pernancy but meer Lay-men and cannot prescribe in non Decimando And that Bede saith of them That they are meer Laici and the Monks of the Order of Praemonstratenses were such and therefore they could not Prescribe to be Discharged of Tithes Mortuaries in some place called Coarse-Presents though they are not Tithes yet they were given Pro Recompensatione subtractionis Decimarum Personalium nec non Oblationum Lindw c. Statutum infra c. for which reason they are not here omitted out of this Catalogue of Tithes Mortuaries as Sir Edw. Coke conceives were not anciently due otherwise than by Custome only until they were settled by the Statute of 21 H. 8. cap. 6. whereby it is Enacted That no man dying possessed of Goods under the value of 6 l. 13 s. 4 d. should pay any Mortuary nor any to be paid but in such places where they used so to be and that but one Mortuary nor that but in one place and that where the party deceased had his most constant abode and usual dwelling and habitation after the rate following viz. 3 s. 4 d. where the Deceased had in Moveables his Debts first paid to the value of 6 l. 13 s. 4 d. and under 30 l. at his death 6 s. 8 d. if he died possessed of Moveables to the value of 30 l. and under 40 l. 10 s. if to the value of 40 l. or upwards And none to be paid by any married Woman Child Non-Housekeeper Wayfaring-man or Non-Resident in the place where he died Which Statute provides That accustomed Mortuaries should be paid as formerly whether more or less than is before limited There were also it seems certain Mortuaries which the Prelates anciently paid to the Kings of this Realm A Mortuary is not properly and originally said to be due to an Ecclesiastical Incumbent Parson or Vicar from any but those only of his own Parish to whom he ministreth Spiritual Instruction and hath right to the Tithes Lindwood in his Gloss on c. Statutum ver ut infra de Consuetud discovers the ground or reason of that payment to be this viz. That when through ignorance and sometimes through negligence and unjust detention of Tithes and Oblations the Parishioner was found tardy and faulty c. Ideo statuit Archiepiscopus quod Compensatione sic subtractorum secundum melius Animal defuncti Ecclesiae damno debuit applicari But all this notwithstanding we know the prevalency of Custome to be such that in some places of this Kingdom they are paid to the Incumbents of other Parishes that perform no Ministerial duties at all to the deceased party nor living nor dying And the Statute of 21 H. 8. c. 6. doth nothing at all controll the course but makes the Usage of payment only to be the Law thereof In the Case of a Prohibition because the Defendant sued in the Consistory Court of Chester before the Commissary for a Mortuary after the death of every Priest withi nt the Archdeaconry of Chester the best Horse or Mare his Saddle Bridle Spurs his best Gown his best Signet or Ring his best Hat his best upper Garments under his Gown as to the Bishop de debito consuetudine fore supponitur and recites the Statute of 21 H. 8. concerning Mortuaries The Plaintiff averred that there was no such Custome there and that she had paid a Mortuary to the Parson of B. and that after a Prohibition the Defendant had prosecuted his Suit in the Ecclesiastical Court The Questions were 1 Whether there was a Custome in that place to give such things for Mortuary and this to be a just cause to have Prohibition Mortuaries being only Triable in the Ecclesiastical Court. 2 Whether Consultation shall be granted without answering the Prohibition The Court was divided in Opinions wherefore ordered the Defendant should Plead or Demurr and then the Court would give Judgment upon the Return before them N NAg or Riding Nag if a man keep a Nag or Horse within the Parish only for his Saddle to ride on no Tithes shall be paid of
that Case it was said If Willowes grow within the Site of a House it is Waste to fell them yet if they be felled that Tithes shall be paid of them Woad yields a Predial Tithe and regularly to be computed inter Minutas Decimas yet in some Cases may be Great Tithes in places where it is much sowed as in Vdall and Tindall's Case The Case was That in Trespass for taking of two Loads of Woad the Jury found That if they were Minutae Decimae then the Jury found the Defendant guilty if they were not Minutae Decimae then for the Plaintiff It was said for the Plaintiff That without more Circumstances it shall not be intended Minutae Decimae for it may be That a great quantity of Woad may be sown and the greatest part of the Commodity in the Parish may consist in it for Minutae Decimae are but of small consideration in a Parish as Herbs in a Garden and such like and therefore Woad sown in a Field is not Minutae Decimae It was Resolved by the Court That Woad growing in the nature of an Herb the Tithe thereof ought to be accounted Minutae Decimae and belong to the Vicar And the Dean and Chapter of Norwich Case was vouched to prove it That the Tithe of 40 acres of Land sowed with Saffron did belong unto the Vicar and not to the Parson because they were Minutae Decimae Hill 1 Car. C. B. Sir Rich. Vdal and the Vicar of Altons Case Cro. 3. par 20. vid. Hutton 77. the same Case Wood is computed among the Predial Tithes as also among the Great Tithes yet it hath been Resolved That if a Vicar be only endowed with the Small Tithes and hath by reason thereof alwaies had the Tithe Wood that in such case it shall be accounted a Small Tithe otherwise it is to be accounted among the Great Tithes Wood or a great Wood consisting for the most part of Underwoods only some Great Trees here and there sparsim therein the whole Wood is Tithable unless they be specially exempted But if the Wood for the most part consist of Timber-Trees only some small parcel of Underwoods or Bushes in the same no Tithe shall be paid for such Wood the Timber-Trees do in that case priviledge the rest of the Wood Wood converted into Arable shall not be discharged of Tithes as Barren Land within the Statute of 7 E. 6. Trin. 12 Jac. B. R. Case Maschal Price Roll. Rep. The Tenth acre of Wood in a Coppice is a good payment of the Tithe specially if such be the Custome of Tithing Wood in that Countrey otherwise Wood in a Coppice or the like cut and sold the Tithe thereof is to be answered not by the Buyer but the Seller as some conceive which by others is opposed who hold That the Buyer not the Seller of Woods selled to be sold shall answer the Tithe the Reason is because Tithes do follow the Fruits yet the Parson for his Right hath his Remedy against either But Wood of Coppices or Trees that one cuts and spends in his own House-keeping though he spend much is not Tithable unless the Parson can alledge and prove a special Custome to the contrary for generally Wood used for Fewel in House-keeping is not Tithable sed Qu. the Custome it being not so per Legem terrae Nor is there any Tithe to be paid for such Wood as is cut for Hop-poles where Tithe is paid of the Hops But where Wood is grubbed up the Land that thereby is made fit for the Plough shall pay Tithe presently And if the Tithes of Wood after the Inheritance thereof sold be subtracted the Parson may by the Canon Law implead either the Buyer or the Seller at his choice though he can recover but of one but now by the Statute the Seller only unto Treble dammages If there be Parson and Vicar in one Church and the Vicar hath the Tithe of Woods and the Parson the Tithe of the Pasture and Wood be felled for Fencing and enclosing the Pasture the Vicar shall not have Tithe of the Wood Woodlands converted into Arable or Tillage is not discharged of Tithes as Heath Waste or other Barren Grounds within the Statute of 7 Ed. 6. Trin. 12 Jac. B. R. Case Maschall vers Price in fin Roll. Rep. A Prohibition in another Case was granted to stay a Suit for Tithe Wood upon a Surmize That the Wood was spent in his House for Firing and shews that the Custome in the same Parish is That the Owners of any House and Land in the said Parish who pay Tithes to the Parson ought not to pay Tithe of Wood spent for Fewel in their Houses And Issue being upon this Custome it was found for the Defendant It was moved in Arrest of Judgment That although it be found there is no such Custome that yet he ought not to pay Tithe for Wood spent in his house nor for Fencing-stuff for Hedges but per Legem terrae ought to be discharged of them But it was Resolved by the Court That it is not de jure per Legem terrae that any be discharged of them for it is usual in Prohibitions to alledge Customes or by reason of other Lands whereof he pays Tithes that he is discharged of that Tithe but not to alledge that per Legem terrae he is discharged And in this Case the Plaintiff in the Prohibition having alledged a Custome and it being found against him it was Adjndged for the Defendant that a Consultation should be awarded By Custome Tithes may be paid for Wood spent in a mans own House Mich. 14 Jac. B. Watley and Hanberry Agreed And albeit there are some Trees of what age or bigness soever they be are regularly to pay Tithes as Willows Hasels Hollies Maples Birch Alders Thorns c. yet if they are cut for Fencing of Grounds or for Fewel to be spent in the Houses of the Owner within the same Parish no Tithes shall be paid thereof unless it hath been otherwise by Custome Also Wood cut for Burning of Bricks to be used for repair of the Owners Buildings in the same Parish pay no Tithes otherwise if used for Bricks to sell or for making Houses not of necessary habitation so as the Wood in its own nature be Tithable Likewise Tithe shall not be paid of the Roots of such Coppice-Wood as paid Tithe at the cutting thereof if such Roots were soon after the cutting such Wood grubbed up to cleanse the Ground If Woodlands be mixt with Woods partly Tithable partly not Tithable it hath been held That if the Major part be not Tithable it shall priviledge the rest but if the greater part be Tithable then all that is Tithable shall pay Tithes Touching the manner of Tithing of Wood and Trees and how the Tithes thereof are to be paid and delivered the Reader for his better satisfaction
before the Birth of such Child for in that Case he is not reputed a Bastard who cannot inherit Land as Heir to his Father nor can any person inherit Land as Heir to him but one who is Heir of his Body Otherwise it is in case the Child were begotten by him who after the Birth of the Child doth Marry his Mother For in that Case notwithstanding such Marriage subsequent to the Birth the Child is reputed a Bastard in the judgment of the Common Law as being born out of Wedlock though according to the Ecclesiastical Law the Child in that case is reputed as Legitimate But if one Marry a Woman and dye before Night without ever bedding her and she after happen to have a Child within possibility of conception in respect of time computable from such Marriage it seems it shall be accounted his Child and Legitimate 9. If a Child be born within the tenth Month computing thirty days to the Month next after a Mans death it shall be reputed his Child as a Mulier but the most natural time is nine Months and ten days computing twenty eight days to the Month which is forty Weeks or any day in the tenth Month may be natural enough Also the Children begotten under a second Marriage after a Lawful divorce from a former are Legitimate and not Bastards And the Child wherewith the Mother is visibly big when she taketh a second Husband shall be reputed the Child of the former Husband though born after Marriage with the second Otherwise if at her second Marriage she were so privlly with Child as that it could not be discerned understand it with this limitation if by possibility of nature it may be so And if a Widow take another Husband within ten days next after the death of her former and be delivered of a Child eleven days before or after forty Weeks from the death of the said former Husband it shall be reputed the Child not of the former but of the later Husband And in one Thecker and Duncombes Case it was adjudged that a Woman may have a Child in thirty eight Weeks and that by cold and hard usage she may go with Child above forty Weeks which was mention'd by the Court in the Case of one Owen against Jevon in an Action of the Case for saying This is the Whore that my Man C. begat a Bastard on and upon a Verdict for the Plaintiff it was moved in arrest of Judgement that the words are not Actionable because there is no special loss or dammage alledged by the Plaintiff and that in one Lightfoots Case against Pigot it had been ruled that an Action lies not for saying a Woman had a Bastard but it being argued on the other side that the words are Actionable because if they were true the Party of whom they are spoken is punishable by the Statute of 7 Jac. with corporal punishment Judgement was given for the Plaintiff Nisi 10. The punishment of a Woman that hath a Bastard that may be chargeable to the Parish is the House of Correction for one year by the Statute 11. Although in the judgement of the Common Law a Bastard be reputed quasi nullius Filius insomuch that if being seized of Lands in his own right he dye without Issue of his Body they may Escheat yet even by that Law the Bastard in respect of his Mother is said to be a Son But in respect of the the Father he is said to be nullius Filius and therefore in the Case of Ralph Haward and the Lady Anne Powes his Wife in a Writ of Partition it was held that if the Mother dispose of all her Lands holden in Knights Servive to her Bastard-daughter by conveyance in her life-time that the same is out of the Statute of 32 H. 8. because she is but a meer Stranger to the Father because nullius Filia and the said Statute speaks of Lawful generation And in the 39 Ed. 3. 42. in a Praecipe where a Bastard was named Filius J. S. the Writ for that reason did abate For the same reason also it is that in a conveyance by a Father to his Bastard-son natural affection is not a sufficient consideration for that he is a Stranger in Law although he be a Son in Nature And yet it seems if a Grant be made to a Bastard by the Sirname of him who is supposed to beget him it is good if he be known by such Name and yet in truth he is nullius filius And if Husband and Wife divorced causa Praecontractus the Issue hath lost his Sirname for Cognomen Majorum est ex sanguine tractum and the Issue now is Bastard and nullius filius yet because he had once a Lawful Sirname it is a good ground of reputation to make him a reputed Son which is a good Name of purchase And it hath been resolved that a Child begotten by a second Husband living the former of a Woman divorced from the former causa Praecontractus is legitimate and no Bastard But in another case that a Child begotten after Marriage solemniz'd infra annos nubiles and for that cause after divorced is illegitimate and a Bastard 12. A. takes B. to Wife and dies B. after forty Weeks and ten Days is delivered of a Daughter The question is whether the Daughter shall be Heir to her Father or a Bastard The Affirmative prevails and such a Child may be lawful Daughter and Heir to her Father for a Post-natus that is born after the forty Weeks may as well be an Heir as an Ante-natus that is born at the end of seven Months And a Child may be legitimate although it be born the last day of the tenth Month after the conception thereof computing the Months per menses solares non lunares according to the report given upon Oath by the learned Physicians in Alsop's Case If a Man hath Issue born by his Wife forty Weeks and eight Daies after his death as if he dye the three and twentieth of March and the Issue is born the ninth of January next following that Issue shall be held Legitimate for it may be Legitimate by nature and it seems the Common Law doth not limit any certain time for Legitimate Infants to be born p upon evidence at the Barr which concern'd the Heir of one Andrews it was resolved by the Court that Dr. Paddey and Dr. Momford Physicians should being first sworn in that case inform the Court upon their Oaths whether according to Nature such Issue may be Legitimate and they said that the exact time of the birth of an Infant is 280. dayes from the conception viz. nine Months and ten Days after conception accounting it by the Solar months viz. 30. days to each month but it is Natural also if he be born any time of 10 Months viz. in 40 Weeks for by such
3. Where the Judgement of the famous Baldus is That Contrahentes Matrimonium cum Authoritate Ecclesiae vigore sententiae Divortii praesumuntur esse in bona fide nec Adulterium â—â—mittunt ibid. nu 17. 11. Although the D. D. are 〈◊〉 divided in this point of second Marriage whilst the Divorced Parties are alive yet the Law generally seems much more to incline to favour such second Marriages where the Divorce is ex causa praecedenti than where it is ex causa subsequenti For when it happens ex causa praecedenti as when the Degrees prohibited are violated Precontract Frigidity in the Man Impotency in the Woman or other perpetual Impediment the Marriage was void and null ab initio it being a Rule and a Truth in Law that non minus peccatum jungere non Conjungendos quam separare non separandâ—s But where the Divorce happens ex causa subsequenti there the Marriage was once good and valid in Law and therefore as some hold indissoluble and that such subsequent cause can have no influence quoad vinculum Mâ—trimonii but only quoad separationem à Mensa Thoro which is but a Partial or Temporal not a Total or Perpetual Divorce A. was Divorced from his Wife for Incontinency he after took another Wife living the first Wife Adjudged the second Marriage was void because the Divorce was but à Mensa Thoro and not à Vinculo Matrimonii Rye and Juliambs Cas More 's Rep. Sanchez says that Quoties Matrimonium dissolvitur si id fit ob utriusque Conjugis perpetuum impedimentum utrique aliae Nuptiae interdicendae sunt Sâ— vero ob alterius tantum impedimentum illi interdicuntur concessa non impedito Licentia ad alias traâ—sâ—undi Sanch. de Matrim lib. 7. Disp 93. nu 37 And again in the same place Viro ratione Frigiditatis separato conceditur Foeminae Licentia Nubendi alii ea viro denegata Et Foeminae ob impedimentum separatae interdicto alio Conjugio id non denegatur sed conceditur viro ibid. c. Laudabilem de Frigid c. 2. in fin 33. q. 1. c. ex literis eod tit Likewise the Summa Astensis hath the same in substance si Arctatio alligetur subaudi quamcunque impotentiam Foeminae statim potest Divortium fieri hac mâ—do vocabantur Matronae fide dignae in Nuptiali opere expertae ar ff de ventr inspect l. 1. verb. igitur c. Et si Mulieres asserant eam non posse fieri Naturaliter Matrem tunc statim potest Divortium fieri dabitur viro Licentia cum alia contrahendi Sum. Astens in l. 8. de Divor propter impotent tit 37. fo 233. as aforesaid yet Tostatus on the 19 th of Mat. saith that Fornicatio non valet simpliciter ad dirimendum Matrimonium sed ad tollendam Cohabitationem Tostati Index verb. Matrimon as appears also by the Canon Law Extra de Divor c. Gaudemus c. Quare facto Divortio says Tostatus again non transeatur ad aliud Matrimonium Tostat ibid. for which he there quotes St. Hierome who in this point is opposed by St. Ambrose Possibly the different constructions that Divines and Lawyers do make of this word Divorce may not be the least reason of the different Opinions in this point for Adam Tannerus as aforesaid tells us That Juristae Divortii voce utuntur pro Dissolutione Matrimonii etiam quoad vinculum ut constat ex toto tit ff de Divortiis Adam Tannerus Tom. 4. Disp 8. de Matrim q. 5. Dub. 5. de Divortio Col. 2232. nu 74. variis de causis solvi posse ut videtur in iisd Legib. apud Greg. Syntag. jur par 2. lib. 9. cap. 5. Theologi tamen ea voce Divortii solum fignificant separationem inter Conjuges aut quoad Cohabitationem aut quoad Thorum Tannerus ubi supra 12. F. being Divorced for Incontinency of the Wife he afterwards Marries P. the Daughter of R. living the first Wife By the whole Court that is a void Marriage for the Divorce is not but à Mensa Thoro and does not dissolve vinculum Matrimonii And by Whitgift Archbishop of Canterbury So also is the Opinion of Divines and Civilians As also in Dame Powels Case against Weeks formerly hinted In Dower it was resolved That a Divorce Causa Adulterii is no Bar of Dower because it is but à mensa thoro not à vinculo Matrimonii And it was said by Daniel that an Elopement is not a Barr of Dower ad ostium Ecclesiae And Judgement for the Plaintiff Agar of Kingston upon the Thames was sued in the Ecclesiastical Court for beating of his Wife and for calling her Whore and was sentenced there to pay his Wife three shillings a Week for her Alimony and divers Fines were imposed upon him for not performing thereof and a Prohibition was granted and also a Habeas Corpus to deliver Agar out of Prison There was a Case of late years where a Man Married the relict of his Great Uncle he Married his Grandfathers Brothers Wife by the Mothers side and it was held lawful it was the Case of one Harison against Dr. Burwell But where a Man Married his Wives Sisters Daughter it was held unlawful and after a Prohibition a Consultation in that Case was granted But Marriages with Cozen Germans are in the said Case of Harrison against Doctor Burwell reported by Sir John Vaughan to be lawful in which Case as also in the Case of Hill against Good reported likewise by the said Sir John Vaughan Chief Justice the Reader may find what Marriages are Lawful and what not what Marriages are prohibited within the Levitical degrees and what Marriages are by Gods Law otherwise prohibited In the Case between Webster and Bury in an Ejectione Firmae a special Verdict was given upon Divorce between Burie and his Wife causa Frigiditatis and that his Wife for three years after his Marriage remansit virgo intacta propter perpetuam impotentiam generationis in viro quod vir fuit ineptus ad generandum and in this special Verdict all the examinations of the Witnesses upon which the Judge in the Ecclesiastical Court was moved to give his Sentence by which the perpetual disability of Burie ad generandum was manifest were read and by which it was pretended that the Issue which he had by a second Wife was illegitimate and this was the doubt of the Jury and it was adjudged that the Issue of the second Wife was Lawful for it is clear that by the Divorce causa Frigiditatis the Marriage is dissolved à vinculo matrimonii and by consequence either of them might Marry after then admitting that the second Marriage was avoidable yet it remained a Marriage until it was Dissolved and by consequence the Issue that is born during such Coverture if no Divorce be in the Life of
Church This double value shall be accounted according to the very or true value as the same may be let and shall be tried by a Jury and not according to the extent or taxation of the Church Co. par 3. Inst cap. 71. And albeit the Clerk be not privy to the Simoniack Contract yet it seems the Patron shall pro hac vice lose his Presentation But the Title of the rightful and uncorrupt Patron shall not be sorscited or prejudiced by the Simoniacal Contract of an Usurper albeit the Clerk be by his presentation admitted instituted and inducted nor entitle the King to present 4. The Church notwithstanding the Admission Institution and Induction becomes void whether the Clerk presented were a party or privy to the corrupt and Simoniacal Contract or not But Sir Simon Degee in his Parson's Counsellor puts the material Question viz. Whether the Clerk that is presented upon a Simoniacal Contract to which he is neither party nor privy be disabled for that turn to be presented by the King to that viz. the same Church In order to the resolution whereof he acquaints us with a Case reported wherein it was adjudged that if a Clerk were presented upon a Simoniacal Contract to which he was neither party nor privy that yet notwithstanding it was a perpetual disability upon that Clerk as to that Church or Living The like in another Case where B. the Church being void agreed with the Patron to give him a certain Sum of Money for the Presentation B. presented C. who knew nothing of the Simoniacal Contract till after his Induction In this Case it seem'd by Warburton Justice that C. was disabled quoad hanc Ecclesiam In which Case it was clear that the grant of the Presentation during the vacancy was meerly void that B. presented as an Usurper that C. was in by the corrupt Contract and that were it not for the same the Patron would not have suffered the Usurpation In further confirmation hereof it is also reported to us that Sir Edward Coke affirmed it hath been adjudged that if a Church be void and a Stranger contracts for a Sum of Money to present one who is not privy to the Agreement that notwithstanding the Incumbent coming in by the Simoniacal Contract is a person disabled to enjoy that Benefice although he obtain a new presentation from the King for that the Statute as to that Living hath disabled him during Life Notwithstanding all which Premises Sir Edward Coke in his Comment upon the said Statute of 31 Eliz. asserts it to have been adjudged in the forecited Case of Baker and Rogers that where the Presentee is not privy nor consenting to any such corrupt Contract there because it is no Simony in him he shall not be adjudged a disabled person within the said Act for the words of the Statute are And the person so corruptly giving c. And so says he it was resolved Mich. 13. Jac. Where the Presentee is not privy nor consenting to any corrupt Contract he shall not be adjudged a disabled person within the Act because it is no Simony in him Coke Inst par 3. cap. 71. Also it was so resolved in Doctor Hutchinsons Case by the whole Court viz. That if a Clerk be presented upon a corrupt Contract within the said Statute although he be not privy thereunto yet his presentation admission and induction are all void within the Letter of that Statute but not within the clause of disability within the same Statute 5. The Contracts which are commonly held corrupt and Simoniacal may be diversified almost into as many kinds as transferences and proprietary negotiations are capable of but those which have been most in practice as appears by the Cases reported in the Law have been by way of unlawful purchasing the next Advowson by Exchanges by Resignation Bonds by Matrimonial compacts by contracts remote and conceal'd from the Presentee by Obligations of an indirect nature and the like To the purposes aforesaid it hath been held Simony for a Parson to promise his Patron a Lease of his Tithes at such a Rent in case he would present another Parson into his Benefice with whom he was to exchange albeit that other was not privy to the Contract he making the Lease after It was likewise held Simony for a Father to present his Son by vertue of a purchase of the next Advowson which he made in the presence of his Son a Clerk when the Incumbent was not like to live by reason of a Sickness whereof he soon after died Otherwise in case the purchase had been made in the absence of the Son as is hereafter mentioned But per Hutt it was held Simony to purchase the next Advowson the Incumbent being sick The like in Winchcombes Case against the Bishop of Winchester and Puleston a Case hereafter often Margined on several accounts where it was held Simony in one Say who was presented upon a Contract which he made with the Patron the Incumbent being then sick for Ninety pound to present him when the Church should be void And as to Resignationbonds Sir Simon Degge affirms That in the case of Jones and Lawrence the sense of the Court was that if a Man be preparing his Son for the Clergy and have a Living in his disposal which falls void before his Son is capable thereof he may Lawfully take a Bond of such person as he shall present to resign when his Son becomes capable of the the Living otherwise in case the Patron take a Bond absolutely to resign upon request without any such or the like cause as for avoidance of Pluralities Non-residence or other such reasonable design The like you have in Babbington and Wood's Case hereafter mentioned So that it seems Bonds and Obligations given and taken upon just and honest grounds to resign are not in themselves Simoniacal Otherwise where ther 's is corruption in the case accompanied with some subsequent Act in pursuance thereof And although presentations made upon Simoniacal Bonds and Obligations are void in Law yet such Bonds themselves though corrupt and Simoniacal are not made void by the Statute of 31 Eliz. 6. B. brought Action against C. upon an Obligation The condition whereof was that whereas the Plaintiff did intend and was about to present the Defendant to the Benefice of Stow if the Defendant at the request of the Plaintiff should resign the same to the hands of the Bishop of London then the Obligation to he void The Defendant demanded Oyer and demurr'd and adjudg'd for the Plaintiff for the resignation might be upon a good intention to prevent pluralities or some other cause and it shall not be intended Simony if it be not specially pleaded and averr'd and Mich. 37. and 38. Eliz. Between Jones and Lawrence it was adjudg'd accordingly and affirmed an Error which the Court viewd and thereupon Judgement was given for the Plaintiff 7.
if the Parson will plead such Presentation he should be prejudiced and here by the Incumbency the words of the Statute will not be satisfied c. Also it seemeth that if I. S. hath an Adowson and A. purchase the next avoidance to the intent to present B. and the Church becomes void and A. presents B. this is Simony by averment as by good pleading the Presentation of B. shall be adjudged void c. Tanfield accordingly as this Case is here is Simony by the Civil Law and the party had his Benefice by Simony although he be not cognusant thereof Secondly admit here was not Simony by the intendment of the Civil Law yet the Statute hath made an avoidance of the Benefice in this Case although it be not Simony for the Statute speakes not one word of Simony throughout the Act and yet by express words it doth avoid such Presentations as this is and as to the Civil Law such Benefice is to be made void by Sentence Declaratory but it is not void ipso facto as it seems in the Case where a common person was consenting to the Simony but the text of the Civil Law says expresly that the Church ought not to be filled Corruptive or by corruption and the Civil Law expresseth such a person as in this Case by Simoniace promotus and calls him who is Particeps Criminis Simoniacus and he who is Simoniacus is by the Civil Law deprived not only of the Benefice ipso facto but also is deprived to be a Minister and adjudged guilty in culpa poena Petrus Benefieldus saith that if a Friend give money to a Patron to make a promise to him c. and the Incumbent pays it such an Incumbent is Simoniacus by the Civil Law and so if the Incumbent pay the money not knowing it till after the induction yet he is Simoniacus and by him if a Friend give money and the Parson is thereupon presented though the Parson knew not of the money given yet he shall be deprived of the Benefice and this difference was certified by Anderson and Gawdy to the Council-Table upon a Reference made to them by the King touching the filling of Benefices by corrupt means And the Statute of purpose forbears to use the word Simony for avoiding of nice construction in the Civil Law as to that word and therefore the makers of the Act set down plainly the words of the Statute that if any shall be promoted for money c. So that by these words it is not material from whom the money comes and then in such Cases for the avoiding of all such grand Offences a liberal Construction ought to be made as hath been used in such cases c. for which and many other reasons mentioned in this Report he commanded Judgment to be entred for the Plaintiff 15. Sr. George Cary being seised of an Advowson granted the next Avoidance to his second Son and died and after the Son corruptly agreed with I. S. to procure the said I. S. to be presented to this Benefice and the second Brother knowing thereof it was agreed that for the perfecting of the agreement the second Brother should surrender his Grant and Interest to the elder Brother which elder Brother not knowing of the said corrupt agreement presented the said I. S. who was Instituted c. all shall be void for he is here presented by reason of this corrupt agreement between the Patron who then was and the Parson and the elder Brother was only used to convey a bad gift by a good hand and all had reference to the corrupt agreement with the Assent of the Patron who then was 16. The King brought a Quare Impedit against the Archbishop of Canterbury Sr. John Hall and Richard Clark for the Church of M. and declares that Richard White was seised of the Mannor to which the Advowson belonged And the 6. Jac. by Indenture he covenanted to stand seised to the use of himself and his Wife for their lives and to the heirs of Richard White And after White presents one Boynton and dyes and his Wife marries with Sr. John Hall who the first of June 6. Jac. by deed grants proximam Adocationem to two to this intent that he might receive of such a Parson that he presented all money as should be agreed between Grantor and Grantee And that this was done Bointon lying in extremis And then the 26. Jan. 16. Jac. there was a corrupt agreement between Sr. John Hall and one of the Grantees that for 200 l. to be paid by the Clerk Blundell that the other Grantee should present him And the first of February Blundel pays Sr. John Hall the money and the second day he was Presented Instituted and Inducted accordingly And that upon this it appertained to the King to present The Bishop pleads but as Ordinary Sr. John Hall makes a title and traverses the corrupt agreement The Incumbent pleads by Protestation that there was not any corrupt agreement as it was alledged and not answers whether the money were paid or not but that he is Parson Imparsonee of the Presentment of But 16. Jac. after such an agreement scil 17. Febr. he was presented by the Letters Patents of the King to his Church and never answers to the Simony and it was held by the Court to be naught and only pleaded to hinder the Execution before the Justices of Assize if the trial went against the Patron And further in that Case between Hall and Blundell it was said by Davenport that this Parson being presented by simony is disabled to this Church for ever and cannot be presented to this Church again as it was adjudged in the Lord Windsors Case But it was said by Richardson if he had said absque hoc That he was in ex Presentatione of c. it had been good enough which was granted Henden two exceptions had been taken 1. That the Incumbent doth not shew what Estate or Interest the King had to present him which doth not need if the King brought a Quare Impedit then it is a good answer to say that he is in of his Presenting But if it be brought by a stranger then he ought to shew the title in his Presentment And he alledged the Statute of 25. E. 3. which enables the Incumbent to plead by Writ of the Law 41. Eliz. There was a Quare Impedit brought for the Church of Danell a presentation by the King was pleaded without making a title and it was admitted good And in many Cases it is more safe not to make a title 2. Because that he pleaded a Presentation by the King he is disabled As to that he said that before he be convicted of Simony he may be presented But by Crook in Sathers Case that if he be presented before conviction yet it is a void Presentation And it was so agreed by the Court and they resolved the plea was nought because he
answers nothing to the Simony for the Protestation is not any answer wherefore Judgment was given for the Plaintiff 17 F. Libels in the Ecclesiastical Court for Tithes and a Prohibition was prayed upon a Suggestion that he came to the Church by Simony By the Court a Prohibition ought to be granted upon a surmise only that he came to the Church by Simony Then Honden shewed that it was found by verdict in the Kings Bench that he came in by Simony And upon that verdict there was a Decree in the Court of Wards accordingly And then the Court inclined to grant a Prohibition And the Case here was that F. being convicted of Simony the King presents Clapthorn who was Admitted Instituted and Inducted And afterwards he takes another Benefice above the value of 8 l. by which the other was void Yet by the Assent of the Lord Windsor Patron F. continued possession And by Richardson he cannot be any way removed until Lapse incurr 18. It was said by the Court in Sr. John Paschall's Case against Clark upon evidence that if the Patron present one to the Advowson having taken an Obligation of the Presentee that he shall resign when the Obligee will after three Months warning that that is Simony within the Statute of 21. Eliz. cap. 16. 19. A. Scised of a Mannor with an Advowson Appendant S. comes to A. and promises that if he would present him c. after the death of the now Incumbent he would give him Seventy pounds to which he agreed And upon that it was agreed between them that the next avoidance shall be granted to B c. the Incumbent dies B. presents S. who continues lacumbent from 27 Eliz. until the 7 th of King James Than A. grants the Mannor cam pertinent to Winchcombe in Fee S. the Incumbent dies 7 Jac. And the King presents Pulleston by the Title of Simony and Winchcombe brought a Quare Impedit and adjudged that it doth not lie In which Case two points were resolved 1. That that is Simony First because there was a corrupt Contract for the Advowson Note that in the Stat. of 31 Eliz. there is not word of Simony for by that means then the Common Law would have been Judge what should have been Simony and what not Secondly although that the prochein Avoidance might be bought and sold bona fide without Simony yet it was so granted to B. to perform the corrupt Contract 2 Jac. was vouch'd that it the Father purchas'd the prochein Avoidance and presents his Son after the death of the Incumbent that is not Simony and that it was accordingly judged in 42 and 43 Eliz. It was Smith and Shelborns Case But by Hubbard that if in the grant of the Prochein Avoidance it appears that it was to the intent to present his Son or his Kinsman and it was done accordingly that is Simony In the 7th Jac. In the Exchequer Calvert against Parkinson The Cosin of C. being Clerk comes to the Grantee of the prochein Avodance and promises him Twenty pounds and Twenty pounds per an if he will present C. to the Church quando c. C. not knowing any thing of the Contract is presented accordingly This is Simony Fortiori in this Case where S. himself who was to be presented was party to the first motion of the Contract for presentation 2. It was resolved that the death of the Simoniacal Incumbent doth not hinder but that the King may well present for the Church was never full as to the King and that Turn is preserved to the King by force of the Statute yet it seems the Church is so full that a Stranger may not present for usurpation for it is not like 7 Rep. 28. where the King is to present by lapse And there are many Cases wherein the Church may be full or void in effect when there is a Simoniacal Incumbent Hubbard said that if A. be obliged to present B c. and he presents by Simony yet the Obligation is forfeited c. The rightful Patron may have a Quare Impedit after the Six months against the Incumbent of an usurper that is in by Simony And by the Court to say the Church was full for Six months is no plea when he is in by Simony Warburton and Hutton cited Doctor Hutchinsons Case 10 Eliz. A Parson preferrs his Bill for Tithes the Parishioner pleads that he was presented by corruption c. and by Simony and a prohibition was granted notwithstanding that the Parson pleaded pardon of the Simony by the King and it seem'd that it was now triable by the Common Law Note 7 H. 7. 37. and Mich. 40. and 41 Eliz. Gregory against Ouldham In debt upon an Obligation to perform certain Covenants which in truth were Simoniacal Contracts and the Plaintiff recovered for it was said that that obligation is collateral and the Law does not at all look upon or take notice of the Simony eo nomine for it is not once named in the Statute but only corrupt giving c. 20. In debt upon an obligation it was said that it was made upon a Simoniacal contract for presentation to the Church with the cure of Souls and so it was for Simony All that was averr'd the Court held to be matter debors and not appear'd within the Deed and for that the Plaintiff had Judgement For no such averment is given by the Statute Note the Statute doth not make the Bond Promise or Covenant void but the Presentation And so adjudged Pasch 40. Eliz. Rot. 1745. C. B. Case of Gregory against Oldbury Co. Inst par 3. cap. 71. 21. If an innocent Incumbent be in by a Simoniacal Contract to which he was no way privy he is not Simoniacus though Simoniace promotus and as he is not Simoniacus so neither Perjurus for Simony seldom goes without some kind of Perjury An Action was brought upon 5 Eliz. for Perjury before one of the Masters of Chancery who had power to take an Oath Adjudged Quod nihil cap. per breve And the reason was because he does not shew that the Oath was in Court. By Whitlock they were called Masters of Chancery because they were Priests and Clergy-men in ancient time and that was the reason that the Lord Chancellor had the disposal of the petty Offices of the King for the preferment of these Clerks that was also the reason that they could not Marry until they were enabled by the Stat. c. 22. Parson L. was convented before the High Commissioners and they would put him to his Oath touching Simony supposing it to be committed by him And a Prohibition was granted that none shall be compelled to accuse himself upon his Oath where he is to incurr a temporal punishment at the Common Law or a temporal loss as in that case of his Church So for Vsury Note Dyer 175. in the Margin And Cook Chief Justice vouch'd 10 Eliz. Smiths Case an Atturney of
Vi Laica removenda further explain'd 26. The Writ Quod clerici non eligantur in Officium 1. AGainst the unlawful Possessor who is the Usurper liveth Three Writs viz. One of the Right as the Writ of Right of Advowson and the other two of the Possession viz. A Quare Impedit and Darrein Presentment This Assize of Darrein Presentment or Assisa ultimae Praesentationis is a Writ which lieth where a man or his Ancestor hath presented a Clerk to a Church and after the Church becoming void by his death or otherwise a stranger presents his Clerk to the same Church in disturbance of him who had last presented This Writ is otherwise also used and differs from that of a Quare Impedit for the Quare Impedit lies upon the disturbance of one who hath the Advowson in his Presentation when the Church is void The other lies where a man or his Ancestors had presented before and now the Church becoming void again a stranger presents in disturbance of him who had last presented Where ever a man may have Assize of Darrein Presentment he may have a Quare Impedit but not e contra He that hath right to present after the death of the Parson and bringeth no Quare Impedit nor Darrein Presentment but suffereth a stranger to usurp upon him yet he shall have a Writ of Right of Advowson but this Writ lieth not unless he claim to have the Advowson to him and his heirs in Fee Simple Where the Ordinary Metropolitan or King presents for Lapse any of these Collatives will serve the Patron for a possession in his Assize of Darrein Presentment which Assize of Darrein Presentment may not be purchased pending a Quare Impedit for the same avoidance and therefore in the Case where William St. Andrewes brought a Writ of Assize of Darrein Presentment against the Archbishop of York Mary Countess of Shrewsbury and one Hacker aud the Bishop making default the Countess and Hacker pleaded in Abatement that the Plaintiff before the Writ purchased brought a Quare Impedit against the same Defendants and shews all certain which remains undetermined and averrs that they are both of the same avoidance And upon Demurrer the Writ was abated by Judgment 2. Assize de utrum or Assisa utrum is a writ which lieth for a Parson against a Layman or for a Layman against a Parson for Land and Tenements doubtful whether it be Lay-Fee or Free Almes These Writs are called Assizes probably either because they settle the possession and so an outward Right in him that obtains by them or because they were originally executed at a certain time and place formerly appointed or because they are tryed most commonly by especial Courts set and appointed for that purpose The Incumbent as touching his Right for his Rectory hath the onely Writ of Juris utrum and for his possession any other possessory Action 3. Quare Impedit is a Writ which lieth for him who hath purchased an Advowson in Gross or a Mannor with an Advowson thereunto appendant and against him who when a Parson Incumbent dieth or a Church otherwise becomes void disturbeth the other in the Right of his Advowson by presenting a Clerk thereunto being void Vhis Writ is distinguish'd from the former of Darrein Presentment or Assisa ultimae Praesentationis because this latter lieth as aforesaid onely where a man or his Ancestors formerly presented but the Quare Impedit lies properly for him who himself was the Purchaser of the Advowson though he that may have Assize of Darrein Presentment may have the other if he please but not so Vice versa as was also before observed Yet it is said in Reg. Orig. f. 30. That a Quare Impedit is of a higher Nature than an Assize of Darrein Presentment because it supposeth both a Possession and a Right Which Quare Impedit the Executors of a Testator may as well as himself might have upon a disturbance made to the Presentment and so was the Opinion of the whole Court in Smallwoods Case awainst the Bishop of Coventry and Lichfield that the Executors may have a Quare Impedit upon a disturbance made to the Presentation which Writ lieth also of a Chappel Prebend c. And in case after the death of the Ancestor of him that presented his Clerk unto a Church the same Advowson be be assigned in Dower to any Woman or to Tenant by the Courtesie which do present and after the death of such Tenants the very Heir is disturbed to present when the Church is void it is in his election whether he will sue the Writ of Quare Impedit or of Darrein Presentmet the which it seems is also to be observed in Advowsons Demised for term of life or years or in Fee Tail And Dammages shall be awared in both these Writs that is if the time of Six Months pass by the disturbance of any so that the Bishop doth thereby Collate to the Church and the very Patron lose his Presentation for that turn Dammages shall be awarded for two years value of the Church And if the Six Months be not elapsed but the Presentment bederaigned within that time then Dammages shall be awarded to the half years value of the Church And if the disturber hath not wherewith to satisfie the Damages where the Bishop Collateth by lapse of time he shall suffer two years Impisonment and half years imprisonment where the Advowson is deraigned within the half year Likewise he that recovers a Mannor whereunto an Advowson is appentlant being disturbed to present when the Church is void shall have a Quare Impedit In which as also in Assise of Darrein Presentment plenarty of the Defendants or Disturbers party is no plea but two Quare Impedits of one Church and for one avoidance a man cannot have In the Case between the King and the Bishop of Norwich and Saker and Cole it was resolved that when one is admitted instituted and inducted by the presentation of a common person though it was upon an usurpation upon the King yet the King cannot remove the Incumbent without a Q. Impedit brought for the Church is full of him till he be removed Cro. par 2. 4. Ne admittas is a Writ that lieth for the Plaintiff in a Quare Impedit or him that hath an Action of Darrein Presentment depending in the Common Pleas and feareth that the Bishop will admit the Clerk of the Defendant during the dependency of the Suit betwixt them This Writ must be sued within six months next after the Avoidance because after the six months the Bishop may present by the lapse Therefore if the Patron of a Church vacant having or not having any Controversie depending with another touching the right of Presentation doubteth that before he makes his Presentation the Bishop may collate a Clerk of his own or admit a Clerk presented by another to the same Benefice unto