Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	defendant_n	good_a	plaintiff_n	2,512	5	10.2701	5	true

Text snippets containing the quad

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

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

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

the Universities c. or otherwise Lawfully Authorized or charged by reason of his or their Cure Benefice or other Spiritual Promotion or Charge in any of his or their open Sermon Preaching or Collation that he or they shall make Declare Preach or Pronounce in any Church Chapel Church-yard or in any other place or places used or appointed to be Preached in or if any Person c. do maliciously willingly or of purpose molest let disturb vex disquiet or otherwise trouble any Parson Vicar Parish Priest or Curate c. saying doing singing Ministring or Celebrating Divine Service Sacraments c. that at any time after the said Statute shall be allowed set forth or Authorized c. The Offenders herein upon Conviction before two Justices of the Peace by two sufficient Witnesses or their own Confession may be committed by the said Justices to the Gaol without Bail or mainprize for three Months and after that to the next Quarter Sessions where if upon the appearance there they Repent and be Reconciled then to be discharged of Imprisonment finding sufficient suerties for their good Behaviour for one whole year then next ensuing and if they refuse to be reconciled and repent then to be continued in the Gaol without Bail c. until they shall be reconciled and repent 1 Mar. Sess 2. cap. 3. The penalty against such as rescue disturbers of Ministers If any person shall unlawfully rescue any Offender in the premisses aforesaid or hinder the Offender or Offenders to be Arrested such rescuer or disturber is to suffer Imprisonment as aforesaid and forfeit five pounds to the Queens Majesty her Heirs and Successors and if the Town suffer such Offender to escape and be lawfully presented for it at the next Quarter-Sessions then the Town forfeits five pounds in like manner such Offenders as are punished in the Ecclesiastical Court are not to be punished by the Justices neither are such as be punished by the Justices to be troubled by the other Court 1 Mar. Sess 2. cap. 3. An Action of false Imprisonment was brought against four Justices of Peace by one who had disturbed a Preacher and adjudged it did not lye Although this Statute was made in time of Popery yet it is still in force as to the Offences before mentioned for in the 10. year of King James one Creswick brought an Action of false Imprisonment against four Justices of the Peace and they justified the Imprisonment upon this Statute and set forth that the Plaintiff disturbed one Robert Thompson a Licensed Minister and hindred his Preaching in the Church of 〈…〉 in the County of York and so they committed the Plaintiff to Prison and upon a Demurrer to this Plea it came to be argued and was strongly debated several Terms but at length in Hill Term 11 Jac. Judgment was given against the Plaintiff Creswick by all the Judges Tr. 10 Jac. Rot. 1647. B. R. Creswick against Rookby alium Bolst Rep. 2. part fo 47 48 49 50 51 52 53. The like case Also one Cross brought an Action of false Imprisonment against one Stanhop and other two Justices of Peace in the County of York and they Justified the Imprisonment by reason of this Statute 1 Mar. cap. 3. for disturbing Preachers and the Plaintiff demurred to their Plea and upon argument it was adjudged against him Hill 11. Jac. B. R. Cross and Stanhop's Case Godbolts Rep. fo 246. pl. 343. By whom the Parish Clark is to be chosen The Minister Parson or Vicar is to chuse the Parish Clark which said choise is to be signified by the Minister Vicar or Parson to the Parishioners the next Sunday following in the time of Divine Service and the Clark is to be twenty years of Age at least and of honest Conversation and sufficient for his Writing Reading and also for his competent Singing if it may be which Clark so chosen shall receive their antient wages without fraud or diminution either from the Church-Wardens at the accustomed time or by their own Collection according to the custom of the Parish Can. 91. but if the Parish have a custom contrary to this Canon then the custom is to be observed and not the Canon as appears by several Cases in Rolls Cases 2 part fo 286. All Church-Wardens Questmen By whom Church-Wardens c are to be chosen Sidemen or Assistants in every Parish are to be chosen by the joynt consent of the Minister and Parishioners if it may be but if they cannot agree then the Minister to chuse one and the Parishioners another Can. 89. 90. but where there is an antient custom in any Parish for the choise of Church-Wardens contrary to the Canon in such case the custom is to be observed for if the Parishioners of a Parish have used time out of mind to Elect one Church-Warden and the Vicar another and afterwards a Canon is made that the Vicar shall Elect two and he doth so accordingly and the Parishioners Elect one according to their Custome and the Ordinary dissallows him and establisheth the other two in this Case a Prohibition shall be granted P. 5 Jac. B. R. the Parishioners Case of Rovenden in Kent Roll's Cases 2 part f. 287. The like A Prohibition was granted against a Church-Warden chosen by the Parson of S. Magnus ●igh London-bridge by force of a Canon upon a surmise that the Parish hath a Custom to choose two Church-Wardens Tr. 7 Car. 1. B. R. between Shirly and Brown the like between Draper and Stone for Abchurch in London P. 4. Car. 1. B. R. Rot. 420. Roll's Cases 2 part f. 287. the like against a Church-Warden chosen by the Parson of Alhallows London P. 17 Jac. B. R. Warner's Case and P. 5 Jac. the Parishioners of Walbrook's Case in London Cro. Jac. f. 532. the like against a Church-Warden chosen by the Parson of S. Thomas in London Tr. 15 Car. B. R. Evelyn's Case Cro. Car. f. 551. and Jo. Rep. f. 453. the same Case and see also the Case of the Parishioners of Ethelborough in London Mar. Rep. p. 22. pl. 50. and pa. 67. pl. 104. The right of the Church and Church-yard are in the Parson The Parson hath the right of the Church and Church yard in him and if the Walls Windows or Doors of the Church be broken down or the Trees in the Church-yard be cut down or the Grass thereof be eaten up the Parson or Vicar and not the Church-Wardens shall have an action for it Quare vi armis domum clausum fregit c. 8 H. 6. f. 9. but for Ornaments in the Church or Bells in the Steeple or a seat in the Church taken away the Parson here shall not have the action for such things but the Church-Wardens must sue for them and if the Coat of Armour or Scutchions or Pendants of Arms that are hung in the Church or Chancel in Honour of the party buried or the Grave Stone laid over

secondly that the People should be fed thirdly that the Parsonage House should be upholden and maintained and if the Statute should be otherwise construed many inconveniences would ensue for Parsons would purchase other Houses within their Parishes and be alwaies resident upon them and suffer their Parsonage Houses to decay and sterilitate their Glebe Land and meliorate their own Possessions in prejudice of their Successors and where the Statute saith he shall be resident upon his Benefice it shall be intended where there can be residence for he cannot be resident upon the Tythes nor upon the Glebe Land where there is not any House but only his Habitation is within his Parsonage House but Justice Clynch and Fenner held the contrary and said if he be resident within his Benefice which extends to the whole Parish it is sufficient but if he be resident upon any other House adjoyning upon his Parish but not within his Parish although every Sunday and Holyday he serve the cure yet it is not sufficient and they said that the intent of the Statute is that he should pascere gregem cibo exemplo verbo all which he may doe when he is resident in any part of the Parish and where it is said in at and upon his Benefice it is clear that all the Parish is his Benefice so he is resident in his Benefice but peradventure he is not resident upon his Benefice unless he Inhabits within the Parsonage House but there are Divers Parsonages which have no Parsonage House for it may be aliened by the former Parson with the consent of the Patron and Ordinary or let out so as his successor cannot have it and therefore his residence may be in any other House within the Parish and it is sufficient and upon this difference of the Justices in their Opinions Crook reports the Case to be adjorned and so does Moore and Gouldesborough but my Lord Cook reporting the same Case saith it was resolved by the Court that the Parson ought to reside in the Parsonage House and not in any other House within the Parish M. 39 40 Eliz. B. R. Goodale and Butler's Case Cro. Eliz. f. 590. pl. 28 M. Rep. f. 540. pl. 712. Gouldes Rep. pa. 169. pl. 100. Co. Rep. 6 Lib. f. 21. b. the same Case but there said to be P. 40 Eliz. and see P. 9 Jac B. R. Shepheard and Twoulsie's Case Boulstr Rep. 1 part f. 111. What residence and what not Another Information was also brought upon the stat 21 H. 8. for non residence and it was found by speciall Verdict that Doctor Newman was Incumbent invested in the Rectory of Staplehirst in the County of Kent and that he was also seized of an House in Staplehirst aforesaid Situate within twenty Yards of the said Rectory and that the Mansion House of the said Rectory was in good repair and that Doctor Newman held that in his hands and occupation with his own proper goods and did not let it to any other and that he Inhabited in the said Messuage and not in the Parsonage and whether this were non residence or no was the Question and it was argued by the Plaintiff's Council that it was non residence and it is there said that the Statute was made for seven causes two of which are for Hospitality and relief of the Poor and these are to be done in the Parsonage House for this is the free Alms of the Church and so it was adjudged B. R. 24 Eliz. in Broom and Hudson's Case the Defendant's Council argued to the contrary but the Case was compounded by the Lord Cook and so no judgment in it but he intended this was no residence within the Statute as the Book saith H. 8 Jac. C. B. Canning and Doctor Newman's Case Brownl Rep. 2 part f. 54. What a Dignity to excuse non residence Upon another Information for non residence the Defendant pleaded that he was chosen Gospeller in the Church of S. Pauls London and was resident there by reason of that Dignity and it was thereupon demurred and it was said by the Plaintiff's Council that this was not any Dignity to excuse the Defendant the Civilians divide spiritual Functions into three degrees first a Function which hath a Jurisdiction as a Bishop Dean c. secondly a Spiritual Administration with a cure as Parson of a Church c. thirdly they who neither have cure nor Jurisdiction as Prebends Chaplains c. and defined a Dignity to be Administratio Ecclesiastica cum Jurisdictione vel potestate conjuncta and thereby they exclude the two last degrees from being any Dignity à multo fortiori the Common Law doth so and to that purpose vide 27 H. 6. 5. 25 E. 3. 41. Br. Nosme 25. that an Archdeacon is not a Name of Dignity 17 E. 3. 31. A Provost is not a Name of Dignity 11 H. 4. 40. A Parson is not a Name of Dignity 14 H. 6. 14. A Presentor is not a Name of Dignity 27 H. 6. 3. A Chaplain is not a Name of Dignity 27 H. 8. 10. is if a Vicar of S. Pauls hath a Benefice with cure he ought to be resident upon it and that is a greater Dignity than Gospeller and of that Opinion were Popham and Clinch Caeteris Justiciariis absentibus but the cause was adjorned and afterwards the Defendant compounded P. 41 Eliz. B. R. Boughton and Gonsley's Case Cro. Eliz. f. 663 pl. 13. Information for non residence where to be brought An Information was brought upon the Statute for non residence before the Justices of Assize in the County of Essex and it was resolved it did not lye but only in the King's Courts where there may be Essoyn Gager del Ley or Protection M. 4 Car. 1 B. R. Green and Guye's Case Cro. Car. f. 146. pl. 26. Note if a Baron have three Chaplains Non obstant when necessary and every one of them hath two Benefices apiece and afterwards the Baron dyes yet they shall enjoy their Benefices with cure in which they were Lawfully setled before but though they continue and abide upon one of the Benefices yet they may be punished for non residence upon the other and so it was adjudged in Parson Boyton's Case as the Lord Cook reports therefore saith he such Minister ought to obtain of the King a non obstante so if the Baron dye be attainted of Treason or Felony or if any Officer be removed from his Office who is Capacitated to retain a Chaplain sic de similibus Co. Rep. 4 Lib. f. 119. a. Non residence excusable when It hath been agreed that Lawfull Imprisonment without fraud is a good excuse of non residence so if there be no Parsonage House for impotentia excusat legem and these Cases are excepted out of the Act by Construction of the Law and it was also held in the Exchequer Tr. 19 Eliz. that sickness without fraud is also a good excuse to wit