found by Office as appears by the Books 11 H. 4. 52. Ass 31. 30. Ass 28. 46 Ed. 3. bre 618. 9 H. 7. 24. c. 1 As to the first it was Resolved That the Wife should be endowed and that the Fine with Proclamations was not a Bar to her and yet it was Resolved That the Act 4 H. 7. c. 24. shall barre a Woman of her Dower by such a Fine if the Woman bring not her Writ of Dower within five years after the Husbands death as was adjudged Hill 4 H. 8. Rot. 344. in the Common-Pleas and 5 Eliz Dyer 224. For by the Act the Title of Feâ—e-Covert iâ— saved by taking Action in 5 years after she is uncovert c. But it was Râ—solved That the Wife was not to be aâ—dâ—d by that saving for in respect of her Husbands Attainder she had not any Right of Dower at his death nor could sue for the same after his death But it was Resolved That the Wife was to be aided by another former saving in the same Act viz. And saving to all other persons viz. who were not Parties to the Fine such Action Right c. as shall first grow or come c. to them after the Fine ingrossed and Proclamations made by force of any Gift in Tail or other Cause or Matter before the Fine levyed so that they take their Action and pursue their Title within 5 years after such Right come to them c. And in this Case the Action and Right of Dower accrewed to the Wife after the Reversal of the Attainder by reason of a Title of Record before the Fine by reason of the Seizin in Fee had and Marriage made before the Fine levyed according to the meaning of the said Act. And as to the Point of Relation it was Resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some not for relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same Parties to advance a Right but not to advance a Wrong which the Law hates or to defeat Collateral Acts which are lawful and chiefly if they concern Strangers for true it is as hath been said that as to the mean profits the same shall have relation by construction of Law till the time of the first Judgment given and that is to favour Justice and advance his Right that hath Wrong by the Erroneous Judgment But if a Stranger hath done a Trespass upon the Land in the mean time he who recovereth after the Reversal shall have an Action of Trespass against the Trespassors and if the Defendant pleads there is to such Record the Plaintiff shall shew the Special Matter and maintain his Action And for the better apprehending the Law on this Point it is to know That when any man recovers any Possession or Seizin of Land in any Action by Erroneous Judgment and afterwards the Judgment is reversed as is said before and thereupon the Plaintiff in the Writ of Errour shall have a Writ of Restitution and that Writ reciâ—es the first recovery and the Reversal of it in the Writ of Errour is That the Plaintiff in the Writ of Errour shall be restored to his Possession and Seizin Una cum exitibus thereof from the time of the Judgment c. Tibi praecipimus quod cadem A. ad plenariam seizinam tenementor praed c. restitui facias per Sacramentum proborum c. diligâ—nter inquiras ad quantum exitus proficua tenementor illor c. a tempore falsi Judicii c. usque ad Oct. Sanct. Mich. anno c. quo die Judicium illu c. revocat fuit c. et quâ—liter hoc praecept c. in Octâ—b c. By which it appears that the Plaintiff in the Writ of Errour shall have Restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Erâ—our cannot have Remedy against a Stranger and therefore the words of the said Writ command the Sheriff to inquire of the Issues and Profits generally c. And therefore the Plaintiff in the Writ of Errour after the Reversal shall have any Action of Trespass for a Trespass mean and therewith agreeth Brian Chief Justice 4 H 7. 12. a. See Butler and Baker's Case in the third Part of my Reports good matter concerning Relations So as it was Resolved in the Case at Bar though to some intent the Reversal hath relation yet to bar the Wife of her Dower by fiction of Law by the Fâ—ne with Proclamations and five years past after the Husbands death when in truth she had not cause of Action nor any Title so long as the Attainder stood in force should be to do a Wrong by a fiction in Law and to bar the Wife who was a meer stranger and could have no Relief till the Attainder was reversed As to the other Objection That the Demandant on the Petition ought to have an Office found for hâ—r It was Resolved That it needed not in this Case because the Title of Dower stood with the Queens Title and affirmed it Also in this Case the Queen was not intitled by any Office that the Wife should be driven to traverse it for then she ought to have had an Office But in case of Dower though that Office had been found for the Queen which doth not disaffirm the Title of Dower in such Case the Wife shall have her Petition without Office See Sâ—dlers Case in the Fourth Part of my Reports And the Case put on the other side was utterly denied by the Court for it was Resolved That if a man seized of Lands in Fâ—e take a Wife of eight years of Age and alien his Lands and after the Wife attains to the Age of nine years and afterwards the Husband dyeth that she shall be endowed because the Title of Dower being not consummate till the death of the Husband and there being Marriage Seizin in Fee age of 9 years and the Husbands death for that cause she shall be endowed it being sufficient that the Marriage Seizin and Age happen during the Coverture So if a man seized of Lands in Fee take a Wife and after she elopes from her Husband now she is barrable of her Dower if during the elopement the Husband alien and after the Wife is reconciled she is Dowable So if a man hath Issue by his Wife and the Issue dyeth and afterwards Land discends to the Wife or she purchase Lands in Fee and dyes without other Issue the Husband for the Issue which he had before the Discent or Purchase shall be Tenant by the Courtesie But if a man taketh an Alien to Wife and afterwards he aliens his Lands and after that she is made a Denizen she shall not be endowed for she was not by her Birth capable of Dower but by her Denization it began But
Law of what nature soever Therefore when one Captain Lee made suit to the King to have an Office to inventory the Goods of those that dyed Testate or Intestate It was Resolved by my Lord Chancellor and my Self That such Grant shall be utterly void being both against the Common-Law and the Statute 21 H. 8. In like manner when another sued to have the Registring of Birth-dayes and the time of death c. So Mich. 19 Jac. To make a New Office in the Kings-Bench onely for making Lattitats was resolved void So Littletons Suit to name an Officer to be a Gen. Reg. c. But the Suit was rejected notwithstanding the fair Pretences of it by the two Chief Justices and others See Hill 12 Jac. Regis 2. Secondly It was Resolved That it was inconvenient for divers Causes 1. For a private man to have private ends 2. The numbring of Strangers by a private man would inâ—er a Terrour and other Kings and Princes will take offence at it 3. It is to be considered what breach it will be to former Treaties 3. As to the third It may be performed without any Inconvenience and so it was divided by the Lord Burleigh and other Lords of the Councel 37 Eliz. To write Letters to the Mayors Bayliffs c. of every City Borough c. where any strangers are resident to certifie how many and of what quality c. which they are to know in respect of their Inhabitants c. and this may be done without any Writing which being shewn to the Lords was by them well approved and the Suits utterly disallowed Decemb. 3. Anno 3 H. 8. Commission was granted to divers to certifie the number of Strangers Artificers c. within London and Suburbs according to the Statutes See Candish Case 29 Eliz. 13 Eliz. A Grant of an Office to Thomas Knivâ—t to examine his Majesties Auditors and Clerks of the Pipe c. Resolved by the Court to be against Law for it belongs to the Barons who are Judges 25 Eliz. A Grant of an Office to Thomas Lichfield to examine all Deceits c. of the Queens Officers for 8 years Resolved to be void Sub-poena's in Chancery belonged antiently to the Six Clerks Queen Elizabeth granted the same to a particular man Affidavits Filing and keeping belonged to the Register King James granted them to a particular man So the erecting and putting down Innes did belong to the Justice of Peace the same King granted it to a particular man So likewise the taking of Depositions c. The Office of Alneger granted by the King to Simon Darlington and the Fees limited The Drawing Ingrossing and Writing all Licences and Pardons granted to Edward Bacon with former Fees and a Restraint to all others The Spa Office granted to Thomas George and others during life with the Fee of 2 s. and a restraint to others The Office of making and Registring all manner of Assurances and Policies c. granted to Richard Gandler Gent. with such Fees as the Lord Mayor and others should rate and a Restraint to others c. The Office of writing Tallies and Counter-Tallies granted to Sir Vincent Skinner The Office of ingrossing Patents to the Great Seal with encrease of Fees granted to Sir Richard Young and Mr. Pye Sed de hoc quaere Sir Stephen Proctor's Case In an Information in the Star-Chamber against Stephen Proctor Berkenhead and others for Scandall and Conspiracy against the Earl of Northampton and the Lord Wooton At the Hearing of the Case were present eight Lords viz. the Chief Baron the two Chief Justices two Bishops one Baron Chancellor of the Exchequer and the Lord Chancellor And the three Chief Justices and the Temporal Baron condemned Sir Stephen Proctor and fined and imprisoned him But the Lord Chancellor the two Bishops and the Chancellor of the Exchequer acquiâ—ted him And the Question was if Sir Stephen Proctor shall be condemned or acquitted And the matter was referred to the two Chief Justices calling to their assistance the Kings Learned Councel And first they Resolved That this Question must be determined by the Presidents of the Court of Star-Chamber that Court being against the Rule and Order of all Courts For in all other Courts if the Justices are equally divided no Judgment can be given So also is it in the Parliament and therefore this course must be warranted by the Custom of the Court. And as to that two Presidents onely were produced viz. One in Hillary Term 39 Eliz. Gibson Plaintiff and Griffith and others Defendants for a Ryot where at Hearing 8 being present 4 gave Judgment that the Defendants were guilty and 4 â— contra and no Sentence of Condemnation was ever entred because the Lord Chancellor was one of the 4 that acquitted them The other was in Hillary 45 Eliz. in an Information against Katherine and others for Forging a Will c. where 4 finding the Defendants guilty of Forgery and 4 onely of Misdemeanour whereof the Lord Chancellor was one Sentence was entred according to the Chancellors Voyce and no other President could be found in this Case as I reported this Term. Concerning Benevolence Note The Exaction under the good Name of Benevolence began thus When King Edw. the 4th had a Subsidy granted him by Parl. in the 12th year of his Reign because he could have no more by Parl and with a Parl. he could not have a Subsidy he invented this Devise wherein observe 3 Things 1. The Cause 2. The Invention 3. The Success 1. The Duke of Burgundy who marryed Edw. the 4th Sister sollicited the King to joyn in War with him against the French King whereto he easily consented to be revenged of him for aiding the Earl of Warwick c. And this was the cause 2. The Invention was The King called before him several times many of his wealthiest Subjects to declare to them his Necessity and Purpose to levy War and demanded of each of them a Sum of Money which by the King 's extraordinary courtesie to them they very freely yielded to Amongst the rest there was a Rich Widow of whom the King merily asked what she would give him for maintenance of his Wars By my Faith quoth she for your lovely Countenance sake you shall have 20 l. which being more than the King expected he thanked her and vouchsafed to kiss her Upon which she presently swore he should have 20 l. more 3. The Success was That where the King called this a Benevolence yet many of the People did much grudge at it and called it a Malevolince Primo Ed. 5. The Duke of Buckingham in Guild-Hall London among other Things inveighed in his Speech against this Taxation and 1 R. 3. c. 2 a Statute is made against it 6 H. 7. The King declaring in Parl that he had just cause of War against the French King desired a Benevolence according to the Example of Edw. 4. and publish'd That he would by their open Hands measure their
positivi Juris est And he holds that a Portion is due by the Law of Nature which is the Law of God but it pertains to the Law of Man to assign Hane vâ—l illam portionem And saith further That Tythes may be exchanged into Lands Annuity or Rent c. And also that in Italy and other the East-Countries they pay not Tythes but a certain Portion according to the Custom And forasmuch as the Tenth Part is now due Ex Institutione Ecclâ—â—â—ae that is by their Canons and it appears by 25 H. 8. cap. 19. That all Canons c. made against the King's Prerogative c. are void and that Law was but Declaratory for no Statute or Custome of the Realm can be abrogated by any Cannon c. and that well appeareth by 10 H. 7. fol. 17. cap. 18. The second Point which agrees with the Law at this day which was adjudged in the said Record 25 H. 3. is That the Limits and Bounds of Towns and Parishes shall be trayed by the Common-Law and not by the Spirituall Court And in this the Law hath great Reason for thereupon depends the Title of Inheritance of the Layfee whereof the Tythes were demanded for Fines and Recoveries are the common Assurances of Lay-Inheritances and if the Spiritual Court should try the Bounds of Towns if they determine that my Land lyeth in another Town than is contained in my Fine Recovery or other Assurance I am in danger to lose my Inheritance and therewith agrees 39 Ed. 3. 29. 5 H. 5. 10. 32 Ed. 4. Consultation 3 Ed. 4. 14. 19 H. 6. 20. 50 Ed. 3. 20. and many other Presidents to this day And Note There is a Rule in Law that when the Right of Tythes shall be tryed in the Spiritual Court and the Spiritual Court hath Jurisdiction of the same that our Courts shall be oâ—sted of the Jurisdiction 35 H. 6. 47. 38 H. 6. 21. 2 Ed. 4. 15. 22 Ed. 4. 13. 38 Ed. 3. 36. 14 H. 7. 17. 13 H. 2. Jurisâ— 19 and when not ousted 12 H. 2. Jurisdiction 17. 13 â— 2. ibid. 19. 7 H. 4. 34. 14 H. 4. 17. 38 Ed. 3. 56. 42 Ed 3. 12. And the Causes why the Judges of the Common-Law would not permit the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Court is because that if the Recompence which is to be given to the Parson in satisfaction of his Tythes doth not amount to the value of his Tythes in kind they would overthrow the same And that appears by Linwood among the Constitutions Simonis Mepham tit de Decimis cap. Quoniam propter fol. 139. b. verbo Consuetudines And that is the true Reason and therefore a Prohibition lyes and therewith agrees 8 Ed. 4. 14. and the other Books aforesaid and infinite Presidents See 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Justices Mich. 6 Jacobi Regis In the Exchequer Baron and Boyse Case In the Case between Baron and Boys in Information upon the Stat. 5 Ed. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer that the Defendant had ingrossed Apples against the said Act. The Barons held clearly that Apples were not within the Act and gave Judgment against the Informer upon the matter apparent to them and caused the same to be entred in the Margin of the Record where the Judgment was given The Informer brought a Writ of Errour in the Exchequer Chamber and the onely Question was Whether Apples were within the said Act. The Letter of which is viz. That whatsoever person c. shall ingross or get into his or her hands by buyiâ—â— c. any Corn growing or other Corn or Grain Butter Cheese Fish or other dead Victuall c. to sell the same again shall be accepted c. an unlawsul Ingrosser And though the Sâ—at 2 Ed. 6. 6. 15. numbreth Butchers Brewers Bakers Cooks Coster Mongers and Fruiterers as Victuallers yet Apples are not dead Victuals within the 5 Ed. 6. there being no Provisoe for Coster-mongers and Fruiterers in the said Act as there are for Buyers and Sellers of Corn and other Victualâ— Also ever since the Act they have bought Apples by Ingross and sold them again and yet no Information was ever before this for the same being for Delicacy more than necessary Food But the Stat. 5 Ed. 6. is intended of things necessary for sustenance of man where the Statute of 2 Edward the 6. 15. made against Conspiracies to enhance the Prices was done by express words to extend it to things which are more of pleasure than profit But this was not resolved by the Justices because the Information was conceived upon that Branch of the Statute concerning Ingrossers Hill 27 Eliz. in Chancery Hill 27 Eliz. In Chancery the Case was thus Ninian Menvil seized of certain Lands in Fee took a Wife and levyed a Fine of the said Lands with Proclamations and afterwards was indicted and outlawed of High-Treason and dyed The Conusees convey the Land to the Queen who is now seized The five years pass after the Husband's death the Daughters and Heirs of the said Ninian in a Writ of Errour in the Kings-Bench reverse the said Attainder M. 26 and 27 Eliz. and thereupon the Wife sues to the Queen by Petition containing all the special matter Which Petition being indorsed by the Queen Fait droit aux Parties c. the same was sent into Chancery as the manner is And in this Case divers Objections were made against the Demandant 1. That the Fine with Proclamations should bar the Wife of Dower and the Attainder of her Husband should not help her for as long as that remained in force the same was a Bar also of her Dower But admit the Attainder of the Husband shall avail the Wife the same being reversed by a Writ of Errour and so in Judgment of Law as if it had never been and against which a man might plead there is no such Record agreeing with the Book 4 H. 7. 11. and the Case in 4 H. 7. 10. b. is A. seized of Land in Fee was Attaint of Hâ—gh-Treason The King grants the Land to B. and afterwards A. committed Trespass upon the Land and after by Paâ—l A. was restored and the Attainder void This shall be as auciplable and ample to A. as if no Attainder had been Afterwards B. brinâ—s Trespass for the Trespass Mesne and it was adjudged 10 H. 7. f. 22. b. that the Action of Trespass was not maintainable because the Attainder was annulled ab initio 2. It was objected That the Wife could not have a Petition because there was not any Officâ— by which her Title of Dower was sound viz. her Marriage her Husbands Seizin and Death for it was said that though he was marryed yet if her Husband was not seized after the Age that she is Dowable she shall not have Dower And the Title of him that sueth by Petition ought to be
89. But in a Writ of false Judgement the Plaintiff shall have direct averment against what the Judges in the inferior Court have done as Judges Quia Recordum non habent 21 H. 6. 34. Neither shall a Judge in the Cases aforesaid be charged before any other Judge at the Suit of the King 27 Ass pl. 18. 23. 2. R. 3. 9. 28 Ass pl. 21. 9 H. 6. 60. Catlyn and Dyer chief Justices Resolved That what a Judge doth as a Judge of Record ought not to be drawn in Question in this Court Nota bene that the said matters at the Bar were not examinable in the Star-Chamber and therefore it was Decreed by all the Court That the said Bill without any Answer to it by Barker shall be taken off the File and utterly cancelled And it was agreed That the Judges of the Realm ought not to be drawn into question for any supposed Corruption which extends to the annihilating of a Record or tending to the slander of the Justice of the King except it be before the King himself for they are only to make an account to God and the King otherwise this would tend to the subversion of all Justice for which reason the Orator said well Invigilandum est semper multae invidiae sunt bonis And the reason hereof is the King himself being de jure to deliver Justice to all his Subjects and because himself cannot do it to all Persons he delegates his Power to his Judges who have the Custody and Guard of the Kings Oath Thorpe being drawn into question for Corruption before Commissioners was held against Law and he pardoned Vide the conclusion of the Oath of a Judge Stowes châ—oi 18 Ed. 3. 312. Weyland chieâ— Justice of the Common Bench and Hengham Justice of the Kings Bench and other Justices were accused of Bribery and their Causes were determined in Parliament Vide 2 Ed. 3. fol. 27. The Justices of Trayl-Baston their Authority was grounded upon the Statute of Ragman which you may see in old Magna Charta Vide the form of the Commission of Trayle-Baston Hollingshead Chron. fol. 312. whereby it appears That the Corruption of his Judges the King himself examined in Parliamentâ— and not by Commission Absurdum est affirmare recredendum esse non judici Pasch 4 Jacob. Regis Case concerning the Oath ex officio The Lords of the Council at Whitehall sedente Parliamento demanded of Popham chief Justice and my self upon motion of the Commons in Parliament In what cases the Ordinary may examine any person ex Officio upon Oath and upon Consideration and View of our Books we answered the said Lords at another day in the Council Chamber 1. That the Ordinary cannot constrain any man to swear generally to Answer to such Interrogatories as shall be administred unto them but ought to deliver them a Copy of the Articles in writings that they may know whether they ought to answer them by Law or no according to the Course of the Chancery and Star-Chamber 2. No man shall be examined upon the secret thoughts of his Heart or of his secret Opinion but of what he hath spoken or done No Lay-man may be examined ex officio nisi in causis matrimonialibus et Testamentariis as appears by an Ordinance of Ed. 1. Title Prohibition Rastal See also the Register fol. 366. the force of a Prohibition and an Attachment upon it by which it appears That such Examination was not only against the said Ordinance but also against the Custome of the Realm which hath been time of which c. but also in prejudice of the Crown and Dignity of the King and with this agrees F. N. B. fol. 41. And so the Case reported by my Lord Dyer not printed Trin. 10 Eliz. One Leigh an Attorney of the Common Pleas was committed to the Fleet because he had been at Mass and refused to swear to certain Articles and in regard they ought in such case to examine upon his Oath and hereupon he was delivered by all the Court of Common-Pleas The like in Mich. 18 Eliz. Dyer fol. 175. in Hinds Case Also vide de Statute 25 H. 8. cap. 14. which is declaratory as to this point It stands not with the right order of Justice that any person should be convict and put to the losse of his Life good Name and Goods unless by due Accusation and Witnesses or by Presentment Verdict precess of Outlawry c. And this was the Judgment of all the said Parliament See F. N. B. Justice of Peace 72 Lam. 6. in his Justice of Peace 338. Crompton in his Justice of Peace 36. 6. In all which it appears That if any be compelled to Answer upon his Oath where he ought not by Law this is oppression and punishable before a Justice of Peace c. But if a Person Ecclesiastical be charged with any thing punishable by our Law as for Usury there he shall not be examined upon Oath because his Oath is Evidence against him at the Common Law but Witnesses may be cited Register title Consult F. N. B. 53. d. 2 H. 4. cap. 15. In H. 8. nor Ed. 6. time no Lay-man was examined upon his Oath except in the said two Cases But in Queen Maries Reign 2 H. 4. was revived but afterwards repealed 10 Eliz. Note King John in the time of his Troubles granted by his Charter 13 Maii Anno Regni 140. submitted himself to the Obedience of the Pope And after in the same year by another Charter he resigned his Crown and Realm to Pope Innocent and his Successors by the hands of Pandulph his Legate and took it of him again to hold of the Pope which was utterly voyd because the Dignity is an inherent inseparable to the Royal Blood of the King and descendable and cannot be transferred Also the Pope was an Alien born and therefore not capable of Inheritance in England By colour of which Resignation the Pope and his Successors exacted great Sums of the Clergy and Layety of England pro commutandis paenitentiis And to fill his Coffers Pope Gregory the 9th sent Otho Cardinalis de Carcere Tulliano into this Realm to Collect Money who did Collect infinite Sums so that it was said of him Quod Legatus saginatur bonis Angliae which Legate held a Councel at London Anno Dom. 1237. 22 H. 3. and for finding out Offences which should be redeemed with Money with the assent of the English Bishops he made certain Canons among which one was Jusjurandi Calumniae in causis Ecclesiasticis cujus libet de veritate dicendi in spiritualibus quoque ut veritas facilius aperiatur c. Statuimus de Caetero praestari in regâ—o Angliae secundum Canonicas legitimas Sanctiones obtenta in contrarium consuetudine non obstante c. By which Cannon it appears That the Law and Custom of England was against such Examinations so that this was a new Law and took its effect de
all his Right Estate c. The Plaintiff surjoyneth and saith that the said sum of 5 l. 6 s. 8 d. c. was not rationabilis finis as the said Thomas Bradley above hath alleadged c. Upon which the Defendant doth demur in Law c. And in this Case these Points were Resolved by Coke Chief Justice Walmesly Warberton Daniel and Foster Justices 1. If the Fine had been reasonable yet the Lords ought to have set a certain time and place when the same should be paid because it stands â—â—on the point of Forfeiture As if a man assures Lands to one and his Heirs upon condition to pay to the Bargainee and his Heirs 10 l. at such a place or that he and his heirs shall re-enter there because no time is limited the Bargainor ought to give notice to the Bargainee c. when he will tender the money and he cannot tender it when he pleaseth and with this agrees 19 Eliz. Dyer 244. So in the Case at the Bar the Copyholder is not bound to carry his Fine alwayes with him c. And though that the Rejoynder is that the Plaintift refused to pay the Fine so he might well do when the Request is not lawful or reasonable And he that is to pay a great Fine as 100 l. or more it is not reasonable that he carry it always with him And the Copyholder was not bound to do it because the Fine was incertain and arbitrable as was Resolved in Hulbarts Case in the 4th Part of my Reports among the Copy-hold Cases 2. It was Resolved That though the Fine be uncertain and arbitrable yet it ought to be secundum arbitrium boni viri and it ought to be reasonable because Excessus in re qualibet jure reprobatur communi for the Common-Law forbids any excessive Distress as appears 41 Ed. 3. 26. And this doth appear to be the Common-Law for the Statute of Articuli super Chartas extends onely for a grievous Distress taken for the Kings Debt See F. N. B. 147. a. and 27 Ass 51. 28 Ass 50. 11 H. 4. 2. and 8 H. 4. 16. c. And so if an excessive Amerciament be imposed in any Couâ—t-Baron or other Court not of Record the Party shall have Moderata mis ericordia And Magna Charta is but an Affirmance of the Common-Law in this Point See F. N. B. 75. And the Common-Law gives an Assize of Sovient Distress and multiplication of Distress found which is Excess And with this agrees 27 Ass 50 51. F. N. B. 178 b. And if Tenant in Dower hath Tenants at Will that are rich and makes them poor by excessive Tallages and Fines this is wast F. N. B. 61. b. 16 H. 3. Wast 135. and 16 H. 7. Vide also the Register Judicial fol. 25. B. Waste lyeth in Exulando Henricum Hermanum c. Villeynes Quorum quilibet tenet unum messuagium unam Virgat terrae in Villenagio in Villa praed c. By all which it appears the Common-Law forbids excessive oppressing of Villains c. So in the Case at Bar though the Fine is uncertain yet it ought to be reasonable and so it appears by the Custome alleadged by the Defendant See Hubbard's Case before in the 4th Part of my Reports And when reasonableness concerning a Fine is in question the same shall be determined by the Court in which the Action depend 21 H. 6. 30. 22 Ed. 4 27. and 50 29 H. 8. 32. c. 3. It was Resolved That the Fine in the Case at the Bar was unreasonable being for the admittance of a Copy-holder in Fee-simple upon a Surrender made for this is not like a voluntary Grant c. for there Arbitrio Domini res estimari debet But when the Lord is compellable to admit him to whose use the Surrender is And when Câ—stuy que use is admitted he shall be in by him who made the Surrender and the Lord is but an Instrument to present the same 4. It was Resolved That the Surjoinder is no more than what the Law saith And for the Causes aforesaid Judgment was given for the Plaintiff And Coke Chief Justice said in this Case That if the Court of Admiralty amerce the Defendant excessively at discretion as seems by 19 H. 6. 7. the same shall not bind the Party and be it excessive or not it shall be determined in the Court where the Action shall be brought And a Writ of Account against a Bayliff or Guardian Quod reddat â—i rationabilem compâ—tum c. for the Law requires Reason and no excuse or extremity in any thing Mich. 6 Jac. Regis in the Common-Pleas Porter and Rochester's Case This Term Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tythes growing in B. in the said County of Essex by Porter in the Court of the Arches of the B. of Canterbury in London And the Case was The Archbishop of Canterbury â—ath a peculiar Jurisdiction of 14 Parishes called a Deanry exempt from the Authority of the Bishop of London whereof the Parish of St. Mary de Arcubus is the chief And the Court is called the Arches because it is holden there And a great Question was moved If in the said Court of Arches holden in London he might cite any dwelling in Essex for substraction of Tythes growing in Essex or if he be prohibited by the Statute 23 H. 8. cap. 9. which after Debate at Bar by Councel and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common-Pleas A Prohibition was granted to the Court of Arches And in this Case divers Points were Resolved by the Court. 1. That â—â—l Acts of Parliament made by the King Lords and Commons in Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civillians Cannonist although the Acts concern Ecclesiastical Jurisdiction And in 10 H. 7. the Bishop of London caused onâ— to be imprisoned because the Plaintiff said he ought not to pay his Tythes to his Curate And the imprisoned Party brought his Action of false Imprisonment against those that arrested him by the Bishops Command and there the Matter is well argued what words are within the Statute and what words are not So upon the same Statute was Resolved in 5 Ed. 4. in Keysar's Case in the Kings Bench which see in my Book of Presidents And so the Statutes of Articuli Cleri de Prohibitione regiâ De Circuâ— spâ—cte agitis of 2 Ed. 6. cap. 13. c. have alwayes been expounded by the Judges of the Common-Law as was adjudged in Wood's Case Pasch 29 Eliz. So 21 H. 8. cap. 13. See 7 Eliz. Dyâ—r 233. 15 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dyâ—r 327. 18 Eliz. Dyer 352 347. 22 Eliz. Dyer 377. 2. Resolved by Coke Chief Justice Warbâ—â—ton Daniel and
you the said Thomas Edwards are no Graduate 4. That you knowing the Premisses notwithstanding you the said Edwards c. of purpose to disgrace the said Dr. Walton c. did against the Rules of Charity write and send to the said Dr. Walton a leud and uncharitable Letter taxing him therein of want of Skill and Judgment in his Profession c. And so far you exceeded in your said uncivil Letter that you told him therein in plain terms He may be crowned for an Ass c. 5. And further to disgrace the said Mr. Dr. Walton in the said University did publish a Copy of the said Letter to Sir William Courtney and others and in your Letter was contained Sipsâ—lam lichenen mentegram Take that for your Inheritance and thank God you have a good Father And did you not covertly imply thereby that the said Dr. Waltons Father late Bishop of Exeter was subject to the French Pox and Leprosie c. 6. That in another Letter you sent to Dr. Maders Dr. in Physick also you named Dr. Walton and made a Hoâ—n in your Letter Whether you meant not thereby that they were both Cuckolds or what other meaning you had 7. You knowing Dr. Walton to be one of the High-Commission in the Diocess of Exeter and having obtained a Sentence against him in the Star-Chamber for contriving and publishing a Libel did triumphingly say You had gotten on the Hip a Commissioner for Causes Ecclesiastical c. which you did to disgrace him and in him the whole Commission in those Parts 8. That after the Letter Missive sent to you you said arrogantly That you cared not for any thing this Court can do for that you can remove this Matter at your pleasure And this Term it was moved to have a Prohibition in this Case and the matter was well argued And at last it was Resolved by Coke Chief Justice Warberton Daniel and Foster Justices That the first six Articles were meerly Temporal and in truth is in the nature of an Action upon the Case for Scandal of Dr. Walton in his Profession of Physick and therefore for them a Prohibition doth lye for divers Causes 1. Because the Persons and Matters are Temporal 2. Because it is for Defamation which if any such shall be for the same it ought to begin before the Ordinary because it is not such an enormous Offence which is to be determined by the High-Commissioners nor doth Suit lye before them for calling the Doctor Cuckold as in the seventh Article And 't was said the Commissioners ought to incur the danger of Praemunire 2. It was Resolved That the Ecclesiastical Judge cannot examine any man upon his Oath upon the Intention and Thought of his Heart for cogitationis poenam nemo â—moret for the Proverb saith Thought is free And therefore for the 6th and 7th were Resolved as well for the Matter as for the Form to be such to which the Defendant was not compelled to answer And that to the 7th he might justifie the same because it appears upon his own shewing that the Doctor was sentenced in the Star Chamber Also the Libel is meer Temporal and if it were Spiritual such a Defamation is not examinable before the High-Commissioners As to the last Article it appeareth now by the Judgment of this Court that he might well justifie the said Words Also the Commissioners shall not have any Conuzance of Scandal to themselves they being Parties and such Scandal punishable by the Common-Law as was resolved in Hales Case in Dyer and in my Book of Presidents Hales Indictment c. The Bishop of Winchester being Visitor of Winchester-School and other his Collegues Anno 5 Car. cited the Usher of the said School by force of the said Commission to appear before them c. for which they incurred the danger of Praemunire So did the Bishop of Canterbury and his Collegues for citing one Humphry Frank Master of Arts and School-Master of Sevennock School c. and proceeding c. Mich. 6 Jac. Regis Taylor and Shoyl's Case Taylor informed upon the Statute 5 Eliz. cap. 4. Tam pro Dom. Râ—ge quaâ— prose in the Exchequer That the Defendant had used the Art and Mystery of a Brewer c. and averred That Shoyl the Defendant did not exercise the Art or Mystery of a Brewer at the time of making the Act nor had been Apprentice 7 years c. The Defendant demurred in Law upon the Informaâ—â—on and Judgment was given against him by the Barons And now in this Term upon a Writ of Errour the Matter was argued at Sergeants Inne before the two Chief Justices And two matters were moved 1. One That a Brewer is not within the said Branch of the said Act for the words are That it shall not be lawful to any Persons other than such as now use lawfully any Art Mystery or Manual Occupation to set up or use any Art Mistery or Manual Occupation except he shall have been brought up therein 7 years at least as an Apprentice And 't was said That the Trade of a Brewer is not any Air Mistery or Manual Occupation within the said Branch because it is easily and presently learned and needs not 7 years Apprenticeship to learn the samâ— it being every Country Housewifes Work And the Act of H. 8. is That a Brewer is not a Handicraft Artificer 2. It was moved That the said Averment was not sufficient for it ought to be as general as the Exception in the Statute is 1. To the first it was Resolved That the Trade of a Brewer viz. To hold a Common Brewhouse to sell Beer or Ale to another is an Art and Mystery within the said Act for in the beginning of it it is Enacted That no Person shall be retained for less time than a whole year in any the Services Grafts Mysteries or Arts of Cloathing c. Bakers Brewers c. Cooks c. Upon which words in the said Branch the Information is grounded Also because every Housewife brews for her private use so also she bakes and dresseth meat yet none can hold a Common Bakehouse or Cooks Shop to sell to others unless he hath been an Apprentice c. And the Act 22 H. 8. c. 13. is explained That a Brewer Baker Surgeon and Scrivener are not Handicrafts mentioned in certain penal Laws but the same doth not prove but they are Arts or Mysteries 2. As to the second it was Resolved That the Intention of the Act was that none should take upon him any Art but he who hath Skill or knowledg in the same for Quod quisque norit in hoc se exerceat And so the first Judgment was affirmed Mich. 6 Jac. Regis In the Common-Pleas The Case of Modus Decimandi Sherly Sergeant moved to have a Prohibition because a Parson sued to have Tythes of Sylva Coedua under 20 years growth in the Weild of Kent where by the Custom no Tythes were ever paid of any Wood And if
receive any diminution of such Reverence and Respect in our Places which our Predecessors had We shall not be able to do You such acceptable Service as they did The state of the Question is not in statu deliberativo but in statu judiciali it is not disputed de bono but de vero non de lege fienda sed de lege lata Not to devise or frame new Laws but to inform You what Your Law of England is And it was never seen before that when the Question is of the Law that your Judges of the Law have been made Disputants with their Inferiours that daily plead before them in the several Courts at Westminster And though we are not afraid to dispute with Mr. Bennet and Mr. Bacon yet this Example being primae impressionis and your Mâ—jesty detesting Novelties We leave it to your Princely Consideration whether you will permit our answering in hoc statu judiciali But in obedâ—ence to your Majesties Command We will inform your Majesty touching the said Question which We and our Predecessors before Us have oftentimes adjudged upon Judicial Proceedings in your Courts of Justice at Westminster which Judgments cannot be reversed or examined for any Errour in Law if not by a Writ of Errour in a more High and Supream Court And that this is the antient Law of England appears by the Stat. of 4 H. 4. c. 22. And We being commanded to proceed all that was said by Us the Judges was to this effect That the Tryal de modo Decimandi ought to be by the Common-Law by a Jury of Twelve Men it appears in three Manners 1. By the Common-Law 2. By Acts of Parliament 3. By infinite Judgments and Judicial Proceedings long times past without interruption But first it is to see what is a Modus Decimandi Now Modus Decimandi is when Lands Tenements or Hereditaments have been given to the Parson and his Successors or an Annual certain Sum or other Profit alwayes time out of mind in full Satisfaction and Discharge of all Tythes in kind in such a place and such manner of Tything is now confessed by the other Party to be a good Bar of Tythes in Kind 1. That Modus Decimandi shall be tryed by the Common-Law and therefore put that which is the most common Case That the Lord of the Mannor of Dale prescribes to give to the Parson 40 s. yearly in full Satisfaction and Discharge of all Tythes growing within the said Mannor of Dale at the Feast of Easter The Parson sues the Lord of the Mannor of Dale for his Tythes of his Mannor in kind and he in Bar prescribes ut supra The Question is If the Lord of the Mannor of Dale may upon that have a Prohibition for if the Prohibition lye then the Ecclesiastical Court ought not to try it 1. First The Law of England is divided into Common-Law Statute and Customs and therefore the Customs of England are to be tryed by the Tryal which the Law of England appoints 2. Prescriptions by the Law of the Holy Church and by the Common-Law differ in the times of Limitation and therefore Prescriptions and Customs of England shall be tryed by the Common-Law See 20 H. 6. f. 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Arch-Deacon of Surrey and declared That he and his Successours were seized by the Hands of the Defendant by Title of Prescription and the Defendant demanded Judgment is the Court would hold Jurisdiction between Spiritual Persons c. Stone Justice Be assured That upon Title of Prescription we will there hold Jurisdiction And upon that Wilby Chief Justice gave the Rule Answer Upon which it follows That if a Modus Decimandi which is an Annual sum for Tythes by Prersciption comes in Debate between Spiritual Persons that the same shall be tryed here 32 E. 2. Jurisdiction 26. There was a Vicar who had onely Tythes and Oblations and an Abbot claimed an Annuity or Pension of him by Prescription and it was adjudged That the same Prescription though between Spiritual Persons shall be tryed here Vide 22 H. 6. 46. 47. 3. See the Record 25 H. 3. cited in the Case of Modus Decimandi before and see Register fol. 38. 4. See the Stat. of Circumspecte agatis Decimae debitae seu consuctae which proves that Tythes in kind and a Modus by Custom c. 5. 8 E. 4. 14. and F. N. B. 41. g. A Prohibition lyes for Lands given in discharge of Tythes 28 E. 3. 97. a. There was a Suit for Tythes and a Prohibition lyes 6. 7 E. 6. 79. If Tythes are sold for Money by the Sale the Things Spiritual are made Temporal And so in the Case de modo Decimandi 42 E. 3. 12. agrees 7. 22 E. 3. 2. Because any Appropriation is mixed with the Temporalty otherwise of that which is meer Temporal So it is of reall Composiâ—ion where the Patron ought to joyn Vid. 11 H. 4. 85. 2. Secondly By Acts of Parliament 1. The said Act of Circumspecte agatis that gives power to the Ecclesiastical Judge to sue for Tythes first due in Kind or by Custom viz. Modus Decimandi So as by that Act though the Yearly Sum soundeth in the Temporalty which was paid by Custom in discharge of Tythes yet because the same comes in the place of Tythes and by Constitution the Tythes are changed into Money and the Parson hath not any remedy for the same which is the Modus Decimandi at the Common-Law For that cause the Act is clear that the same was a Doubt at the Common-Law And the Stat. of Articuli Cleri cap. 1. If that corporal punishment be changed into poenam pecuniariam for that Pain Suit lyes in the Spiritual Court For which see Mich. 8 H. 3. Rot. 6. in Thesaur And by the 27 H. 8. cap. 20. It is Enacted That all Subjects of the Realm according to the Ecclesiastical Law and after the laudable Usages and Custom of the Parish c. shall yield and pay his Tythes c. and for substraction thereof may by due process c. compell him to yield the Duties and with that in effect agrees 32 H. 8. c. 7. By the 2 Ed. 3. c. 13. it is Enacted That all the Kings Subjects shall henceforth truly and justly without Fraud c. divide c. and pay all their Predial Tythes in their proper kind as they rise c. And always when an Act of Parl. commands or prohibits any Court be it Spiritual or Temporal to do any thing Spiritual or Temporal if the Stat. be not obtained a Prohibition lyes as upon the Stat. de artic super chart cap. 4. Quod communio Placita non tenentur in Scaccario A Prohibition lyes to the Court of Exchequer if the Barons hold a common Plea there as appears in the Register 187. b. So upon the Stat. West 2. Quod inquisitioâ—â—es quae magnae sunt examinationis non
their Consciences and Oaths they can 2. That all the said Cases are clear in the Judgment of those who are Learned in the Laws that Consultation ought by the Law to be granted 1. For as to the first President the Case upon their own shewing is Three Persons joyned in one Prohibition for three several parcels of Land each having a several sort of Tything and their Interests being several they could not joyn and therefore a Consultation was granted 2. To the second the manner of Tything was alleadged to be paid to the Parson or Vicar which is uncertain 3. To the third The Modus never came in Debate but whether the Tythes did belong to the Parson or Vicar which being between two Spiritual Persons the Ecclesiastical Court shall have Jurisdiction and therewith agrees 38 E. 3. 6. 4. To the last The same was upon the matter of a Custom of a Modus Decimandi for Wooll for to pay the Tythe of Corn or Hay in Kind in satisfaction of Corn Hay and Wooll cannot be a satisfaction for the Wooll for the other two were due of common right The Bishop of London answer'd That the words of the Consultation were Quod suggestio praedicta mattriaque in eadem cohtenta minus sufficiens in lege existit c. So as materia cannot be referâ—ed to Form and therefore it ought to extend to the Moâ—us Decimandi To which I answer'd That when the Matter is insufficiently or uncertainly alleadged the Matter it self faileth and though the Matter be in truth sufficient yet if it were insufficiently alleadged the Plea wanteth matter Then the Lord Treasurer saâ—d he wondered they would produce things that made more against them then any thing had been said And when the King relyed upon the Prohibition in the Register when Land is given in discharge of Tythes the Lord Chancellor said That was not like this Case For there by the Gift of the Land the Tythes were discharged but in the Case de modo Decimandi an Annual Sum is paid yet the Land remains charged and is to be discharged by Plea de modo Decimâ—ndi All which I utterly denied For the Land was as absolutely discharged of the Tythes in casu de modo Decimandi as where Lands are given All which the King heard with patience and the Chancellor answer'd no more After the King with all his Councel had for 3 dayes together heard the Allegations on both sides he said He would maintain the Laws of England and that his Judges should have as great respect from all his Subjects as their Predecessors And for the Matter he said for any thing had been said on the Clergies part he was not satisfied and advised Us the Judges to confer among our selves and that nothing be encroached in the Ecclesiastical Jurisdâ—ction and they to keep within their Jurisdiction And this was the end of these three dayes Consultation Note Dr. Bennet in his Discourse inveighed much against the Opinion 8 E. 4. 14. and in my Reports in Wrights Case That the Ecclesiastical Judge would not allow a Modus Decimandi and said that was the Mistery of Iniquiâ—y and they would allow it The King asked for what cause it was so said in the said Books To which I answer'd That it appears in Linwood who was Dean of the Arches and a Profound Canonist who wrote in Henry the Sixth's time in his Title De decimis cap Quoniam propter c. fol. 139. b. Quod decimae soluantur absque ulla diminutione And in the Gloss it is said Quod consuetudo de non Decimando aut de non bene decimando non valet And that being written by so great a Canonist was the cause of the said Saying in 8 E. 4. that they would not allow the said Plea de modo decimandi And it seemed to the King that that Book was a good cause for them in Edward the Fourth's time to say as they had said But I said I did not rely thereon but on the Grounds aforesaid Lastly The King said that the High Commission ought not to meddle with any thing but that which is enormous and which the Law cannot punish as Heresie Schism Incest and the like great Offences And the King thought that two High-Commissions for either Province one should be sufficient for all England and no more Mich. 39 40 Eliz. In the Kings-Bench Bedel and Sherman's Case Mich. 39 40 Eliz. Which is entred Mich. 40 Elizâ— in the Common-Pleas Rot. 699. Cantabr the Case was this Robert Bedel Gent. and Sarah his Wife Farmers of the Rectory of Litlington in the County of Cambridge brought an Action of Debt against John Sherman in custodia mariscalli c. and demanded 550 l. and declared that the Master and Fellows of Clare-Hall in Cambridge were ieized of the said Rectory in Fee in right of the said Colledge and the 10 Jun. 29 Eliz. by Indenture dâ—nised to Christopher Phesâ—nt the said Rectory for 21 years rendring 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute c. which Rent was the antient Rent who entred and was possessed and assigned all his Interest to one Matthew Bats who made his last Wâ—ll and made Sarah his Wife Executrix and dyed Sarah proved the Will and entred and was thereof possessed as Executrix and took to Husband the said Robert Beâ—el by force whereof hey in right of the said Sarah entred and were possessed and the Defendant was thâ—n Tenant and seized for his life of 300 Acres of Arable Lands in Litlington aforesaid which ought to pay Tythes to the Rector of Litlington and in 38 Eliz. the Defendant Sâ—minavit grano 200 Acres paâ—c â— c. the Tythes whereof amounted to 150 l. And the Defendant did not set forth the same from the Nine Parts but carryed them away contrary to the Statute 2 E 6 c. The Defendant pleaded Nihil debet And the Jury â—ound that the Defendant did owe 55 l. and to thâ— rest they found Nihil debet And in Arrest of Judgment divers Matters were moved 1. That Grano Seminata is too general and it ought to be expressed with what kind of Grain the same was sowed 2. It was moved If the Parson ought to have the treble value the Forfeiture being â—xoresly limited to none by the Act. or that the same beâ—ong to the Queen 3. If the same belong to the Parson if he ought to sue for it in the Ecclesiastical Court or in the King 's Temporal Court 4. If the Husband and Wife should joyn in the Action or the Husband alone and upon solemn Argument at the Barre and Bench Judgment was affirmed Trin. 7 Jac. Regis In the Court of Wards John Bayley's Case It was found by Writ of Dien clausit extremum that the said John Bayley was seized of a Messuage and of and in the 4th part of one Acre of Land late parcel of the Demesne Lands of the Mâ—nnor of Newton in the
shall be extinct for Fealâ—y is by necessity of Law incident to the Reversion but the Rent shall be divided pro rata portionis and so it was adjudged And it was also adjudged That though Collins come to the Reversion by several Conveyances and at severall times yet he might bâ—ing an Action of Debt for the whole Rent Hill 43 Eliz. Rot. 243. West and Lassels Case So Hill 42 Eliz. Rot. 108. in the Common Pleas Ewer and Moylâ—s Case Note It was adjudged 19 Eliz. in the Kings-Bench that where one obtained a Prohibition upon Prescription de modo Decimandi by payment of a sum of money at a certain day upon which Issue was takeâ— and the Jury found the modus Decimandi by payment of the said sum but at another day the Case being well debated at last it was Resolved That no Consultation should be granted for though the day of payment may bâ— mistaken yet a Consultation shall not be granted where the Soitâ—tual Court hath not Jurisdiction of the Cause Taafi ld Chief Baron hath the Report of this Cause Mich. 7 Jac. Regis In an Ejectione Firmae he Writ and Declaration were of two parts of certain Lands in Hetherset and Windham in the County of Norfolk and saith not in two parts in three parts to be divided and yet it was good as well in the Declaration as the Writ for without question the Writ is good de duabus partibus generally and so is the Register See the 4 E. 3. 162. 2 E. 3. 31. 2 Ass 1. 10 Ass 12. 10 E. 3. 511. 11 Ass 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appears that by the Intendment and Construction of the Law when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part undivided But when any Demand is of other parts in other form there he ought to shew the same specially And according to this difference it was resolved in Jordan's Case in the Kings-Bench and accordingly Judgment was given this Term in the Caseat Bar. Mich. 7 Jac. Regis In the Common-Pleas Muttoa's Case An Action upon the Case was brought against Mutton for calling the Plaintiff Sorce and Inchanter who pleaded Not Guilty and it was found against to the Damage of six pence And it was holden by the whole Court in the Common-Pleas that no Action lyes for the laid words for Sortilegus est qui per sortes futura praenunciat Inchantry is vordis aut rebus adjunctis aliquid praeter naturam moliri See 45 Ed. 3. 17. One was taken in Southwark with the Head and Visage of a dead man and with a Book of Sorcery in his Mayl and he was brought into the Kings-Bench before Knevet Justice but no Indictment was framed against him for which the Clerks made him swear never after to commit Sorcery and he was sent to Prison and the Head and Book were burn'd at Tuthil at the Prisoners charges The antient Law was as by Britton appears that who were attainted of Sorcery were burned but the Law at this day is they shall onely be fined and imprisoned So if one call another Witch an Action will not lye But if one say She is a Witch and hath bewitched such a one to death an Action upon the Case lyes if in truth the party be dead Conjuration in the Stat. 5 Eliz. cap. 16. is taken for Invocation of any evil and wicked Spirits and the same by that Act is made Felony But Witchcraft Inchantment Charms or Sorcery is not Felony if not by them any person be killed or dyeth The first Statute made against Conjuration Witchcraft c. was the Act 33 H. 8. c. 8. and by it they were Felony in certain Cases special but that was repealed by the 1 Ed. 6. c. 12. Mich. 7 Jae Regis In the Court of Wards Sir Allen Percy 's Case Sir John Fitz and Bridget his Wife being Tenants for life of a Tenement called Ramshams the remainder to Sir John Fitz in Tail the remainder to Bridget in Tail the reversion to Sir John and his Heirs Sir John and Bridget his Wife by Indenture demised the said Tenement to William Sprey for divers years yet to come except all Trees of Timber Oakes and Ashes and liberty to carry them away rendring Rent And afterwards Sir John dyed having Issue Mary his Daughter now Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for 7 years The Question was Whether Sir Allen having the immediate Inheritance in right of his Wife expectant upon the Estate for the life of Bridget and also having the Possession of the said Demise might cut down the Timber Trees Oakes and Ashes And it was objected he might well do it for it was Resolved in Sanders Case in the 5th Part of my Reports That if Lessee for years or life assigns over his term or Estate to another excepting the Mines or the Trees c. that the Exception is void But it was answered and Resolved by the two Chief Justices and the Chief Baron that in the Case at Bar the Exception was good without question because he who hath the Inheritance joyns in the Lease with the Lessee for life And it was further Resolved That if Tenant for life Leaseth for years excepting the Timber Trees the same is lawfully and wisely done for otherwise if the Lessee or Assignee cut down the Trees the Tenant for Life should be punished in Wast and should not have any remedy against the Lessee for years But when Tenant for life upon his Lease excepteth the Trees if they be cut down by the Lessor the Lessee or Assignee shall have an Action of Trespass Quare vi armis and shall recover Damages according to his loss And this Case is not like the Case of Sanders for there the Lessee assigned over his whole Interest and therefore could not except the Mines Trees c. But when Tenant for life leases for years except the Timber Trees the same remaineth yet annexed to his Free-hold and he may command the Lessee to take them for necessary Reparations of his Houses And in the said Case of Sanders a Judgment is cited between Foster and Miles Plaintiffs and Spencer and Bourd Defendants That where Lessee for years assigns over his Term except the Trees that Wast in such Case shall be brought against the Assignee But in this Case without question Wast lyeth against Tenant for life and so there is a difference Mich. 7 Jac. Regis In the Court of Wards Hulme's Case The King in Right of his Dutchy of Lancaster Lord Richard Hulms seized of the Mannor of Male in the County of Lancaster holden of the King as of his Dutchy by Knights Service Mesne and Robert Male seized of Lands in Male holden of the Mesne as of his said Mannor by Knights
Law The Case was often argued at Bar and now this Term it was argued at the Bench by the Justices and therein these Points were resolved 1. That the first part of the Custom was absurd and repugnant but it extends not to the Case for the last part of the Custom which concerns the cutting down of the Trees concerns the Point in question and so the first part of the Custom is not material And when it was objected that the pleading that the Messuage of the Plaintiff was in decay was too general as appears by the Book 10 Ed. 4. 3. To that it was answered by Cook Chief â—ustice That the said Book proved the pleading in the Case at Bar was certain enough and therewith agrees 7 H. 6. 38. 34 H. 6. 17. 2. It was Resolved That in this Case without question there needs not to alleadge more certainty for the Copyholder doth not here take it according to the Custom but the Lord of the Mannor cuts it down and preventeth the Copyholder of his benefit and therefore he needeth not to shew any decay at all but onely for increasing of Damages for the Lord does the wrong when he cuts down the Tree which should serve for Reparations 3. It was Resolved That of Common-Right as a thing incident to the Grant the Copyholder may take House-bote Hedge-bote and Plough-bote upon his Copy-hold Quia concesso uno conceduntur omnia sine quibus id consistere non potest And with this agrees 9 H. 4. Wast 59. But the same may be restrained by Custome 4. It was Resolved That the Lord cannot take all the Timber-Trees but he ought to have sufficient for Reparation of the Customary Houses and for Plough-bote c. for otherwise great Depopulation will follow And it is to be understood that Bote being on old Saxon Word hath two significations First compensatio criminis as Frithbote signifies to be discharged for giving amends for breach â—f the Peace Manhote to be discharged of amends for the death of a man And secondly for Reparation as Bridgebote Burghbote Castlebote Parkbote c. And it is to be known that Bote and Estovers are all one And Estover is derived of the French Word Estover i. e. fovere i. e. to keep warm cherish c. And there are four kinds of Estovers viz. First Arandi Secondly Ardendi Thirdly Construendi And fourthly Claudendi viz. Ploughbote Firebote Housebote and Hedgebote 5. It was Resolved That the Copyholder shall have a general Action of Trespass against his Lord Quare clausum fregit arborem suam succidit For Custome hath fixed it to his Estate against his Lord. And the Copy-holder in this Case hath as great an Interest in the Timber Trees as he hath in his Messuage which he holds by Copy And if the Lord break or destroy the House without question the Copyholder shall have an Action of Trespass against his Lord Quare domum fregit and by the same Reason for the Timber-Trees which are annexed to the Land and which he may for Reparation of his Messuage or else it cannot stand See Trin. 40 Eliz. Rot. 37. in B. R. between Stebbing and Grosenor See Taylor 's Case in the Fourth Part of my Reports and see 5 H. 4. 2. 2 H. 4. 12. 2 E. 4. 15. 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. 11 H. 4. 23. 21 H. 7. 14. b. acc 35 H. 6. 24. 30 H. 6. Tresp 10. c. 21 H. 7. 15. 11 H. 4. 23. See Fitz. Trespass ultimo in the Abridgement And afterwards the same Term Judgment was given on the principal Case for the Plaintiff Pasch 8 Jacobi In Communi Ranco The Parishioners of St. Alphage in Canterbury by Custome ought to choose the Parish-Clerk whom they chose accordingly The Parson by colour of a new Canon made at the Convocation in the Year of the King that now is which is not of force to take away any Custome drew the Clark before Dr. Newman Officiall of the Arch-Bishop of Canterbury to deprive him upon the Point of right Election and for other Causes And upon that it was moved at the Bar to have a Prohibition And upon hearing of Dr. Newman and himself and his Councel a Prohibition was granted by the whole Court because the Party chosen is a meer Temporal Man And the means of choosing him viz. the Custome is also meerly Temporal So as the Official cannot deprive him but upon occasion the Parishioners may displace him And this Office is like that of a Church-Warden who though they be chosen for two years yet for cause they may displace them as is held in 26 H. 8. 5. And though the Execution of the Office concerneth Divine Service yet the Office it self is meer Temporal See 3 E. 3. Annuity 30. 18 E. 3. 27. And it is to be known that the deprivation of a man of a Temporal Office or Place is a Temporal Thing Upon which no Appeal lyes by the 25 H. 8. but an Assize as in 4 Eliz. Dyer 209. And therewith agrees the Book 8 Ass Sirases Case But if a Dean of a Cathedral Church be deprived before the Commissioners of the King he may appeal to the Delegates within the said Act 25 H. 8. For a Deanery is a Spiritual Promotion and not Temporal And before that Act in such Case the Appeal was to Rome immediately Mich. 5 Jacobi Regis In Banco Regis Prichard and Hawkin's Case John Prichard brought an Action upon the Case against Robert Hawkins for Slanderous Words publish'd the last Day of August 3. Jacob. Viz. That Prichard which serves Mistriss Shelley did murder John Adam's Child Quandam Isabellam Adams modo defunct filia cujusdam Johannis Adams de c. innuendo Upon which a Writ of Errour was brought in the Exchequer-Chamber upon a Judgment given for Prichard in the Kings-Bench and the Judgment was reversed in Easter Term 7 Jac. because it doth not appear that Isabel was dead at the time of speaking the words for tunc defunct ought to have bin in stead of modo defunct Pasch 8 Jac. In Banco Regis Dison and Bestney's Case Humphry Dyson said of Nicholas Bestney a Councellor at Law of Grays-Inne Thou a Barrester Thou art no Barrester Thou art a Barretor Thou wert put from the Bar and darest not shew thy self there Thou study the Law thou hast as much Wit as a Daw. Upon Not Guilty pleaded the Jury found for the Plaintiff and gave 23 l. Damages upon which Judgment was given and upon Writ of Errour in the Exchequer-Chamber the Judgment was affirmed Pasch 8 Jac. Regis In Banco Regis Smith and Hill's Case Noah Smith brought an Action of Assault and Battery against Walter Hill in the Kings-Bench which began Pasch 7 Jac. Rot. 175. Upon Not Guilty pleaded a Verdict and Judgment for the Plaintiff and 107 l. given for Damages and Costs In a Writ of Errour in the Exchequer Chamber the Errour was