all the mean profits from the time of the erroneous Iudgment given until the Iudgment in the Writ of Error so as the Reversal hath a Retrospect to the first Iudgment as if no Iudgment had been given And therefore the Case in 4 H. 7. 10. b. the case is A. seised of Land in Fee was attainted of High Treason and the King granted the Land to B. and afterwards A. committed Trespass upon the Land and afterwards by Parliament A. was restored and the Attainder made voyd as if no Act had been and shall be as available and ample to A. as if no Attainder had been and afterwards B. bringeth Trespass for the Trespass Mesue and it was adjudged in 10 H. 7. fo 22. b. That the Action of Trespass was not maintainable because that the Attainder was disaffirmed and annulled ab initio And in 4 H. 7. 10. it is holden That after a Iudgment reversed in a Writ of Error he who recovered the Land by Erroneous Iudgment shall not have an Action of Trespass for a Trespass Mean which was said was all one with the principal case in 4 H. 7. 10. and divers other Cases were put upon the same ground It was secondly objected That the Wife could not have a Petition because there was not any Office by which her title of Dower was found scil her marriage the seisin of her Husband and death for it was said that although she was marryed yet if her Husband was not seised after the age that she is Dowable she shall not have Dower as if a man seised of Land in Fee taketh to Wife a woman of eight years and afterwards before her age of nine years the Husband alieneth the Lands in Fee and afterwards the woman attaineth to the age of nine years and the Husband dyeth it was said that the woman shall not be endowed And that the title of him who sueth by Petition ought to be found by Office appeareth by the Books in 11 H. 4. 52. 29 Ass 31. 30 Ass 28. 46 E. 3. bre 618. 9 H. 7. 24. c. As to the first Objection it was resolved That the Wife should be endowed and that the Fine with proclamations was not a bar unto her and yet it was resolved that the Act of 4 H. 7. cap. 24. shall bar a woman of her Dower by a Fine levyed by her Husband with proclamations if the woman doth not bring her Writ of Dower within five years after the death of her Husband as it was adjudged Hill 4 H. 8. Rot. 344. in the Common Pleas and 5 Eliz. Dyer 224. For by the Act the right and title of a Feme Covert is saved so that she take her action within 5. years after she become uncovert c. but it was resolved That the wife was not to be ayded by that saving for in respect of the said Attainder of her Husband of Treason she had not any right of Dower at the time of the death of her Husband nor can she after the death of her Husband bring an Action or prosecute an Action to recover her Dower according to the direction and saving of the said Act But it was resolved That the Wife was to be ayded by another former Saving in the same Act viz. And saving to all other persons scil who were not parties to the Fine such action right title claym and interest in or to the said Lands c. as shall first grow remain descend or come to them after the said Fine ingrossed and proclamations made by force of any Gift in Tail or by any other cause or matter had and made before the said Fine levied so that they take their Actions and pursue their right and Title according to the Law within five years next after such Action Right Claim Title or Interest to them accrued descended fallen or come c. And in this case the Action and right of Dower accrued to the wife after the reversall of the Attainder by reason of a Title of Record before the Fine by reason of the seisin in Fee had and the Marriage made before the Fine levied according to the â—â—â—ention and meaning of the said Act. And as to the said poâ—â—t of Relation It was resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some intent 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 or Ut res magis valeat quam pereat But the Law will never make such a construction to advance a wrong which the Law abhorreth Or to defeat Collaterall Acts which are lawfull and principally if they do concern Strangers And this appeareth in this Case scil when an erroneous Iudgment is reversed by a Writ of Error For true it is as it hath been said That as unto the mean Profits the same shall have relation by construction of Law untill the time of the first Iudgment given and that is to favour Iustice and to advance the right of him who hath wrong by the erroneous Iudgment But if any stranger hath done a Trespasse upon the Land in the mean time he who recovereth after the Reversall shall have an Action of Trespasse against the Trespassors and if the Defendant pleadeth that there is no such Record the Plaintiff shall shew the speciall matter and shall maintain his Action so as unto the Trespassors who are wrong Doers the Law shall not make any construction by way of relation ab initio to excuse them for then the Law by a fiction and construction should do wrong to him who recovereth by the first Iudgment And for the better apprehending of the Law on this point it is to know That when any man recovers any possession or seisin of Land in any Action by erroneous Iudgment and afterwards the Iudgment is reversed as is said before and upon that the Plaintiff in the Writ of Error shall have a Writ of Restitution and that Writ recites the first recovery and the reversall of it in the Writ of Error is that the Plaintiff in the Writ of Error shall be restored to his possession and seisin Una cum exitibus thereof from the time of the Iudgment c. Tibi praecipimus quod eadem A. ad plenariam seisinam tenementorum praedict cum pertinentiis sine dilatione restitui facias per sacramentum proborum legalium hominum de Com. suo diligenter inquires ad quantum exitus proficua tenementorum illorum cum pertinentiis a tempore falsi Judicii praedict reddit usque ad Oct. Sanct. Mich. anno c. quo die judcium illud per praefat Justiciar nostros revocat fuit se attingunt juxta verum valorem eorundem eadem exitus proficua de terris catallis praedict B. in baliva tua fieri facias denarios inde praefato A. pro exitibus et proficuis
not of Tythes severed from the nine parts for that shall be in Case of a Praemunire and it appeareth to the Common Law See 16 H. 2. in the Case of Mortuary Vide Decretalia Sexti Lib. 3. tit de Decimis cap. 1. fo 130. Col. 4. Et summa Angelica fo 72. the same And that also appeareth by Linwood amongst the Constitutions Simonis Mephum tit de Decimis cap. Quoniam propter fo 139. 6. verbo Consuetudines Consuetudo ut non solvantur aut minus plene solvantur Decimae non valet and ibidem secundum alios Quod in Decimis realibus non valet Consuetudo ut solvatur minus decima parte sed in personalibus c. And ibidem Litt. M. verbo Integre faciunt expresse contra opinionem quorundum Theologorum qui dicunt sufficere aliquid dari pro Decima And that is the true Reason in both the said Cases scil de modo Decimandi de Limitibus Parochiorum c. that they would not adjudg according to their Canons and therefore a Prohibition lieth and therewith agreeth 8 E. 4. 14. and the other Boóks abovesaid and infinite presidents and the rather after the Statute of 2 E. 6. cap. 13. And also the Customs of the Realm are part of the Laws of the Realm and therefore they shall be tryed by the Common Law as is aforesaid See 7 E. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Iustices VI. Mich. 6 Jacob. in the Exchequer Baron and Boys Case IN the Case between Baron and Boys in an Information upon the Sur Stat. 2 E. 6. cap. 14. of Ingrossers Statute of 5 E. 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 of the Exchequer held clearly That Apples were not within the said Act and gave Iudgment against the Informer upon the matter apparent to them and caused the same to be entered in the Margent of the Record where the Iudgment was given and the Informer brought a Writ of Error in the Exchequer chamber and the only Question was Whether Apples were within the said Act the letter of which is That whatsoever person or persons c. shall ingross or get into his or their hands by buying contracting or promise taking other then by Demise Grant or Lease of Land or Tythe any Corn growing in the Fields or any other Corn or grain Butter Cheese Fish or other dead Victual within the Realm of England to the intent to sell the same again shall be accepted c. an unlawful Ingrosser And although that the Statute of 2 E. 6. cap. 15. made against Sellers of Victual which for their great gain conspire c. numbereth Butchers Brewers Bakers Cooks Costermongers and Fruterers as Victualers yet Apples are not dead Victuals within the Statute of 5 E. 6. For the Buyers and Sellers of Corn and other Victuals have divers Provisoes and Qualifications for them as it appeareth by the said Act but Costermongers and Fruterers have not any Proviso for them also always after the said Act they have bought Apples and other Fruits by Ingross and sold them again and before this time no Information was exhibited for them no more then for Plums or other fruit which serveth more for delicacy then for necessary Food But the Statute of 5 E. 6. is to be intended of things necessary and of common use for the sustenance of man and therefore the words are Corn Grain Butter Cheese or other dead Victual which is as much to say as Victual of like quality that is of like necessary and common use But the Statute of 2 E. 6. cap. 15. made against Conspiracies to enhaunce the prices was done and made by express words to extend it to things which are more of pleasure then of profit So it was said That of those Fruits a man cannot be a Forestaller within this Act of 5 E. 6. for in the same Branch the words are any Merchandize Victual or any other thing But this was not resolved by the Iustices because that the Information was conceived upon that branch of the Statute concerning Ingrossers VII Hill 27 Eliz. in the Chancery HIllary Term the 27 of Eliz. in the Chancery the Case was thus One Ninian Menvil seised of certain Lands in Fee took a wife Fine Dower Relation and levyed a Fine of the said Lands with proclamations and afterwards was indicted and out-lawed of High Treason and dyed The Conusees convey the Lands to the Queen who is now seised the five years pass after the death of the Husband The Daughters and Heirs of the said Ninian in a Writ of Error in the Kings Bench reverse the said Attainder M. 26 and 27 Eliz. last past and thereupon the Wife sueth to the Queen who was seised of the said Land as aforesaid by Petition containing all the special matter scil the Fine with proclamations and the five years passed after the death of her Husband the Attainder and the reversal of it and her own title scil her marriage and the seisin of her Husband before the Fine And the Petition being endorsed by the Queen Fiat droit aux parties c. the same was sent into the Chancery as the manner is And in this case divers Objections were made against the Demandant 1. That the said Fine with proclamations should bar the Wife of her Dower and the Attainder of her Husband should not help her for as long as the Attainder doth remain in force the same was a bar also of her Dower so as there was a double bar to the Wife viz. the Fine levyed with proclamations and the five years past after the death of her Husband and the Attainder of her Husband of his Treason But admit that the Attainder of the Husband shall avail the Wife in some manner when the same is now reversed in a Writ of Error and now upon the matter is in Iudgment of Law as if no Attainder had been and against that a man might plead That there is no such Record because that the first Record is reversed and utterly disaffirmed and annihilated and now by Relation made no Record ab initio and therewith agreeth the Book of 4 H. 7. 11. for the words of the Iudgment in a Writ of Error are Quod Judicium praedict Errores praedict alios in Recordo c. revocetur admittetur c. quod ipsa ad possessionem suam sive seisinam suam as the case requireth tenementorum suorum praedictorum una cum exitibus proficuis inde a tempore Judicii praedict reddit praecept ad omnia quae occasione Judicii illius omisit restituatur By which it appeareth that the first Iudgment which was originally imperfect and erroneous is for the same Errors now adnulled and revoked ab initio and the party against whom the Iudgment was given restored to his possession and to
certain Lands in Hetherset and Windham in Norfolk and doth not say in two parts in three parts to be divided and yet it was good as well in the Declaration as in the Writ for without question the Writ is good de duabus partibus generally and so is the Register See 4 E. 3. 162. 2 E. 3. 31. 2 Assis 1. 10 Assis 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 appeareth 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 not divided As if two parts are demanded there remains a third part and when three parts are divided three remains a fourth part c. But when any demand is of other parts in other form there he ought to shew the same specialty as if one demandeth three parts of five parts or four parts of six c. And according to this difference it was so resolved in Jourdens Case in the Kings-Bench and accordingly Iudgment was given in this Term in the Case at Bar. XXVI Mich. 7 Jacobi Regis In the Common-Pleas Muttons Case AN Action upon the Case was brought against Mutton for calling of the Plaintiff Sorcerer and Inchantor who pleaded Not-guilty and it was found against him to the damages of 6 d. And it was holden by the whole Court in the Common-Pleas that no Action lieth for the said words for Sortilegium est rei futuri per sortes exploratio Et Sortilegus sive Sortilegista est qui per sortes futura praenunciat Inchauntry est verbis aut rebus adjunctis aliquid praeter naturam moliri whereof the Poet saith Carminibus Circes socios mutavit Ulyssis See 45 E. 3. 17. One was taken in Southwark with the Head and Visage of a Dead man and with a Book of Sorcery in his Mail and he was brought into the Kings-Bench before Knevet Iustice but no Indictment was framed against him for which the Clarks made him swear that he should never after commit any Sorcery and he was sent to prison and the Head and the Book were burned at Tuthill at the charges of the Prisoner And the ancient Law was as it appeareth by Britton that those who were attainted of Sorcery were burned but the Law is not such at this day but he who is convicted of such imposture and deceit shall be fined and imprisoned And it was said that it was adjudged That if one calleth another Witch that an Action will not lie for it is too general Et dicitur Latine Venefica But if one saith She is a Witch and hath bewitched such a one to death an Action upon the Case lieth if in truth he be dead Conjuration is derived of these words Con and juro Et propria dicitur quando multi in alicujus pernitiem jurant And in the Statute of 5 Eliz. cap. 16. it is taken for Invocation of any evil and wicked Spirits i. est conjurare verbis conceptis aliquos malos iniquos spiritus the same is made Felony But Witchcraft Inchantment Charm or Sorcery is not felony if not by them any person be killed or dyeth So that Conjuration est verbis conceptis compellere malos iniquos spiritus aliquod facere vel dicere c. But a Witch who works any thing by any evil spirit doth not make any Conjuration or Invocation by any powerful names of the Devil but the wicked spirit comes to her familiarly and therefore is called a Familiar But if a man be called a Conjurer or a Witch he shall not have any Action upon the Case unless that he saith That he is a Conjurer of the Devil or of any evil or wicked spirit or that one is a Witch and that she hath bewitched any one to death as is before said And note that the first Statute which was made against Conjuration Witchcraft Sorcery and Inchantment was the Act of 33 H. 8. cap. 8. and by it they were Felony in certain cases special but that Act was repealed by the Statute of 1 E. 6. cap. 12. XXVII Mich. Term 7 Jacobi Regis In the Court of Wards Sir Allen Percies 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 Oaks and Ashes and liberty to carry them away rendering Rent and afterwards Sir John dyed having issue Mary his daughter now the Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for seven years The Question was Whether Sir Allen having the immediate inheritance in the right of his Wife expoctant upon the Estate for the life of Bridget and also having the possession by the said Demise might cut down the Timber Trees Oaks and Ashes And it was objected that he might well do it for it was resolved in Saunders Case in the fifth part of my Reports fo 12. That if Lessee for years or for life assigns over his term or Estate unto another excepting the Mines or the Trees or the Clay c. that the exception is voyd because that he cannot except that which he cannot lawfully take and which doth not belong unto him by the Law But it was answered and resolved by the two chief Iustices and the chief Baron That in the Case at Bar the Exception was good without question because that 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 cutteth down the Trees the Tenant for life should be punished in Waste and should not have any remedy against the Lessee for years and also if he demiseth the Land without exception he who hath the immediate Estate of Inheritance by the assent of the Lessee may cut down all the Timber Trees which when the term ended all should be wasted and then the Tenant for life should not have the Boots which the Law giveth him nor the pawnage and other profits of the said Trees which he lawfully might take 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 to the said case of Saunders which was affirmed to be good Law for there the Lessee assigned over his whole interest and therefore could not except the Mines
were meer Spirituall such a Defamation is not examinable before the high Commissioners As to the last Article It appeareth now by the Iudgment of this Court that he might well justifie the said words Also the high Commissioners shall not have Conusance of any Scandall to themselves for Judex non potest injuriam sibi datam punire Vi. the Stat. of 23 H. 8. c. 9. that they are parties and such Scandall is punishable by the Common Law as it was resolved in Hales Case which see in the Book of the Lord Dyers Reports and see in my Book of Presidents the Copy of the Indictment of Hales for scandaling of the Ecclesiasticall Commissioners Note the Bishop of Winchester being Visiter of the School of Winchester of the Foundation of Wickam Bishop of Winchester and the Bishop and Cant. and other his Colleagues An. 5 Car. cited the Vsher of the said School by force of the said Commission to appear before them and proceed there against him for which they incurred the danger of a Premunire And so did the Bishop of Canterbury and his Colleagues by force of a high Commission to them directed cite one Humphrey Frank Master of Arts and Schoolmaster of the School of Sevenock of the Foundation of Sir William Sevenock in the time of King Henry the sixth to appear before the high Commissioners at Lambeth the sixth day of December last past which citation was subscribed by Sir John Bennet Doctor of Law Doctor James and Doctor Hickman three of the high Commissioners and Sir Christopher Perkins procured the said Citation to be made and when the said Frank appeared the Archbishop being associated with Sir Christopher Perkins and Doctor Abbot Dean of Winchester made an Order concerning the said School scil That the said Frank shall continue in the said School untill the Annunciation and that he should have twenty pounds paid to him by Sir Ralph Bosoile Knight IV. Mich. 6 Jacobi Regis Taylor and Shoiles Case TAylor informed upon the Statute of 5 Eliz. cap. 4. Tam pro Domino Reg. quam pro seipso in the Exchequer That the Defendant had exercised the Art and Mystery of a Brewer c. and averreâ— that Shoile the Defendant did not use or exercise the Art or Mystery of a Brewer at the time of the making of the Act nor had been Apprentice by seven years at least according to the said Act c. The Defendant did demur in Law upon the Information and Iudgment was given against him by the Barons of the Exchequer And now in this Terme upon a Writ of Error the matter was argued at Serjeants-Inne before the two chief Iustices and two matters were moved The One That a Brewer is not within the said Branch of the said Act For the words are That it shall not be lawfull to any person or persons other then such as now lawfully use or exercise any Art Mystery or manuall Occupation to set up use or exercise any Art Mystery or manuall Occupation except he shall have been brought up therein seven years at the least as an Apprentice And it was said That the Trade of a Brewer is not any Art Mystery or manuall Occupation within the said Branch because the same is easily and presently learned and he needs not to have seven years Apprentiship to be instructed in the same for every Huswife in the Country can do the same and the Act of Henry the eighth is That a Brewer is not a Handycraft Artificer 2. It was moved That the said Averment was not sufficient for the Averment ought to be as generall as the exception in the Statute is scil That the Defendant did not use any Art Mystery or Occucupation at the time of the making of the same Act for by this pretence if any Art c. then as a Taylor Carpenter c. he may now exercise any other Art whatsoever As unto the first It was resolved That the Trade of a Brewer scil 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 the Act It is enacted That no person shall be retained for lesse time then a whole year in any of the Services Crafts Mysteries or Arts of Cloathing c. Bakers Brewers c. Cooks c. So as by the judgment of the same Parliament The Trade of a Brewer is an Art and Mystery which words are in the said Branch upon which the said Information is grounded Also because that every Huswife brews for her private use so also she bakes and dresseth Meat And yet none can hold a common Bakehouse or a Cooks Shop to sell to others unlesse that he hath been an Apprentice c. for they are expresly named also in the Act as Arts and Mysteries And the Act of 22 H. 8. cap. 13. is explained That a Brewer Baker Surgeon and Scrivener Alien are not handycrafts mentioned within certain penall Lawes But the same doth not prove but that they are Arts or Mysterys for Art or Mystery is more generall then Handycrafts for the same is restrained to Manufactures As to the second Point It was resolved That the intention of the Act was That none should take upon him any Art but he who hath skill or knowledge in the same And therefore the Statute intendeth That he who useth any Art or Mystery at the time of the Act might use the same Art or Mystery for Quod quisque norit in hoc se exerceat And the words of the Act are As now do lawfully use c. And it was said That it was very necessary that Brewers should have knowledge and skill in brewing good and wholsome Beer and Ale for that the same doth greatly conduce to mens healths And so the first Iudgment was affirmed V. Mich. 6 Jacobi In the Common Pleas. The Case of Modus Decimandi SHerley Serjeant moved to have a Prohibition because that a person Tithes sued to have Tithes of Silva Cedua under twenty years growth in the Weild of Kent where by the Custome of it which is a great part of the County Tithes of any Wood was never paid And if such a Custome in non Decimando for all Lay people within the said Weild were lawfull or not was the question And to have a Prohibition it was said That although one particular man shall not prescribe in non decimando yet such a generall Custome within a great Country might well be as in 43 E. 3. 32. and 45 E. 3. Custome 15. It was presented in the Kings Bench That an Abbot had purchased Tenements after the Statute c. And the Abbot came and said That he was Lord of the Town c. And the custome of the Town was That when the Tenant cesseth for two years that the Lord might enter untill agreement be made for the Arrerages And that he who held these Tenements was his Tenant and cessed for two years and he entred and
are to be determined in our Law he shall have a Consultation because that the principal belongeth to them 38 E. 3. 5. Right of Tythes between two spiritual persons shall be determined in the Ecclesiastical Court And 38 E. 3. 6. where the Right of Tythes comes in debate between two spiritual persons the one claiming the Tythes as of common Right within his Parish and the other claiming to be discharged by real composition the Ecclesiastical Court shall have Iurisdiction of it And the said Iudges made humble suit to the King That for as much as they perceived that the King in his Princely Wisdom did detest Innovations and Novelties that he would vouchsafe to suffer them with his gracious favor to inform him of one Innovation and Novelty which they conceived would tend to the hinderance of the good administration and execution of Iustice within his Realm Your Majesty for the great zeal which you have to Iustice and for the due administration thereof hath constituted and made fourteen Iudges to whom you have committed not onely the administration of Ordinary Iustice of the Realm but crimina laesae Majestatis touching your Royal person for the legal proceeding also in Parliament we are called by Writ to give to your Majesty and to the Lords of the Parliament our advice and counsel when we are required We two chief Iustices sit in the Star-Chamber and are oftentimes called into the Chancery Court of Wards and other High Courts of Iustice we in our Circuits do visit twice in the year your Realm and execute Iustice according to your Laws and if we who are your publique Iudges 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 without having such reverence and respect as Iudges ought to have The state of this 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 frame or devise new Laws but to inform your Majesty what your Law of England is and therefore it was never seen before that when the Question is of the Law that your Iudges of the Law have been made Disputants with him who is inferior to them who day by day plead before them at their several Courts at Westminster and although we are not afraid to dispute with Mr. Bennet and Mr. Bacon yet this example being primae impressionis and your Majesty detesting Novelties and innovations we leave it to your Grace and Princely consideration whether your Majesty will permit our answering in hoc statu judiciali upon your publique Iudges of the Realm But in Obedience to your Majesties command We with your Majesties gracious favor in most humble manner 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 Iustice at Westminster which Iudgments cannot be reversed or examined for any Error in Law if not by a Writ of Error in a more high and supream Court of Iustice upon legal and judicial proceedings and that is the ancient Law of England as appeareth by the Statute of 4 H. 4. cap. 22. And we being commanded to proceed all that which was said by us the Iudges was to this effect That the Tryal De Modo Decimandi ought to be by the Common Law by a Iury of twelve men it appeareth in three manners First by the Common Law Secondly by Acts of Parliament And lastly by infinite judgments and judicial proceedings long times past without any impeachment or interruption But first it is to see What is a Modus Decimandi 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 always time out of minde to the Parson and his successors in full satisfaction and discharge of all the Tythes in kinde in such a place and such manner of Tything is now confessed by the other party to be a good bar of Tythes in kinde I. That Modus Decimandi shall be tryed by the Common Law that is that all satisfactions given in discharge of Tythes 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 and renewing within the Mannor of Dale at the Feast of Easter The Parson sueth the Lord of the Mannor of Dale for his Tythes of his Mannor in kinde and he in Bar prescribes in manner ut supra The Question is if the Lord of the Mannor of Dale may upon that have a Prohibition for if the Prohibition lyeth then the Spiritual Court ought not to try it for the end of the Prohibition is That they do not try that which belongs to the Tryal of the Common Law the words of the Prohibition being that they would draw the same ad aliud examen First the Law of England is divided into Common-Law Statute-Law and Customs of England and therefore the Customs of England are to be tryed by the Tryal which the Law of England doth appoint Secondly 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. fo 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Archdeacon of Surry and declared how that he and his successors were seised by the hands of the Defendant by title of Prescription and the Defendant demanded Iudgment if the Court would hold Iurisdiction being between spiritual persons c. Stone Iustice Be assured that upon title of prescription we will here hold Iurisdiction and upon that Wilby chief Iustice gave the Rule Answer Vpon which it follows that if a Modus Decimandi which is an annual sum for Tythes by prescription comes in debate between spiritual persons that the same shall be tryed here For the Rule of the Book is general scil upon title of prescription we will hold Iurisdiction and that is fortified with an Asseveration Know assuredly as if he should say that it is so certain that it is without question 32 E. 3. Jurisd 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 although it was betwixt spiritual persons should be tryed by the Common Law Vide 22 H. 6. 46. and 47. A prescription that an Abby time out of minde had found a Chaplain in his Chappel to say Divine Service and to minister Sacraments tryed at the Common Law 3. See the Record of 25 H. 3. cited
of Iustice And this was the end of these three days consultations And note That Dr. Bennet in his discourse inveighed much against the opinion in 8 E. 4. 14. and in my Reports in Wrights Case That the Ecclesiastical Iudg would not allow a Modus Decimandi and said That that was the mystery of iniquity and that they would allow it And the King asked for what cause it was so said in the said Books To which I answered that it appeareth in Linwood who was Dean of the Arches and of profound knowledg in the Canon and Civil Law and who wrote in the Reign of King Henry the sixth a little before the said Case in 8 E. 4. in his title de Decimis cap. Quoniam propter c. fo 139. b. Quod Decimae solvantur c. 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 a great Canonist of England was the cause of the said saying in 8 E. 4. that they would not allow the said plea de Modo Decimandi for always the Modus Decimandi is lesse in value then the Tithes in specie and then the same is against their Canon Quod decimae solvantur absque diminutione quod consuetudo de non plene Decimando non valet And it seemed to the King that that Book was a good Cause for them in the time of King Edward the fourth to say as they had said but I said That I did not relie upon that but upon the grounds aforesaid scil The common Law Statute-Laws and the continuall and infinite judgements and judiciall proceedings and that if any Canon or Constitution be against the same such Canon and Constitution c. is void by the Statute of 25. H. 8. Cap. 19. which see and note For all Canons Constitutions c. against the Prerogative of the King the common Laws Statutes or Customs of the Realm are void Lastly the King said That the high Commission ought not to meddle with any thing but that which is enormious and exorbitant and cannot permit the ordinary Proces of the Ecclesiasticall Law and which the same Law cannot punish And that was the cause of the institution of the same Commission and therefore although every offence ex vi termini is enormious yet in the Statute it is to be intended of such an offence is extra omnem normam as Heresie Schisme Incest and the like great offences For the King said That it was not reason that the high Commission should have conusance of common offences but to leave them to Ordinaries scil because that the party cannot have any appeal in case the high Commisson shall determine of it And the King thought that two high Commissions for either Province one should be sufficient for all England and no more XV. Mich. 39 and 40 Eliz. in the Kings Bench. Bedell and Shermans Case MIch 39 and 40 Eliz. which is entred Mich. 40 Eliz. in the com-Pleas Rot. 699 Cantabr the Case was this Robert Bedel Gent. and Sarah his wife Farmors of the Rectory of Litlington in the County of Cambridge brought an Action of Debt against John Sherman in the custody of the Marshall of the Marshalsey and demanded 550 l. And declared that the Master and Fellows of Clare-Hall in Cambridge were seised of the said Rectory in fee in right of the said Colledge and in June 10. 29 Eliz. by Indenture demised to Christopher Phesant the said Rectorie for 21 years rendering 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute c. which Rent was the ancient Rent who entred into the said Rectory and was possessed and assigned all his interest thereof to one Matthew Batâ— who made his last Will and Testament and made Sarah his wife his Executrix and died Sarah proved the Will and entred and was thereof possessed as Executrix and took to husband the said Robert Bedel by force whereof they in the Right of the said Sarah entred and were possessed thereof and that the Defendant was then Tenant and seised for his life of 300 acres of arable Lands in Litlington aforesaid which ought to pay Tithes to the Rector of Litlington and in anno 38 Eliz. the Defendant grano seminavit 200 acres parcel c. And that the Tithes of the same did amount to 150 l. and that the Defendant did not divide nor set forth the same from the 9 parts but took and carried them away against the form and effect of the Statute of 2 E. 6 c. And the Defendant pleaded Nihil debet and the Iury found that the Defendant did owe 55 l. and to the residue they found Nihil debet c. and in arrest of Iudgement divers matters were moved 1. That grano seminata is too generall and incertain but it ought to be expressed with what kinde of corn the same was sowed 2. It was moved If the Parson ought to have the treble value the forfeiture being by expresse words limited to none by the Act or that the same did belong to the Queen 3. If the same did belong to the Parson if he ought to sue for the same in the Ecclesiasticall Court or in the Kings Temporall Court 4. If the husband and wife should joyn in the Action or the husband alone should have the Action and upon solemn argunent at the Barre and at the Bench the Iudgement was affirmed XVI Trinity Term 7 Jocob in the Court of Wards John Bailies Case IT was found by Writ of Diem clausit extremum That the said John Bailie was seised of a Messuage or Tenement and of and in the fourth part of one acre of land late parcel of the Demesne lands of the Mannor of Newton in the County of Hereford in his Demesne as of fee and found the other points of the Writ and it was holden by the two chief Iustices and the chief Barons 1. That Messuagium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain land or any thing which is holden 2. It was holden that is was void for the whole because that no Town is mentioned in the Office where the Messuage or Tenement or the fourth part of the acre lieth and from the Visne of the Mannor upon a Traverse none can come because it is not affirmed by by the Office that they are parcel of the Mannor but Nuper parcel of the Mannor which implieth that now they are not and it was holden by them that no Melius inquirendum shall issue forth because that the whole Office is incertain and void XVII Trinity 7 Jacobi Regis in the Court of Wards THe Attorney of the Court of Wards moved the two chief Iustices and chief Baron in this Case That a man seised of lands in fee-simple covenants for the advancement of his son and of his name and blood and posterity that he will stand seised
same but they estreat the same into the Exchequer which hath power by the Law to writ forth Proces to the Sheriff to levy the same But if a man be convicted in the Star-Chamber for Forgery upon the Statute of 5 Eliz. that in that case for the double costs and damages that an English Writ shall be made directed to the Sheriff c. reciting the conviction and the Statute for the levying of the said costs and damages of the goods and chattels and profits of the Lands of the Defendant and to bring in the mony into the Court of Star-Chamber and the Writ shall be sealed with the great Seal and the Test of the King For the Statute of 5 Eliz. hath given Iurisdiction to the Court of Star-Chamber and power to give Iudgment amongst other things of the costs and damages which being given by force of the said Act of Parliament by consequence the Court by the Act hath power to grant Execution Quia quando aliquid conceditur ei omnia concedi videntur per quod devenitur ad illud And it was resolved That the giving of the damages to the Plaintiff was begun but of late times and although that one or two Presidents were shewed against this Resolution they being against the Law the Iudges had not any regard to them The like Resolution was in the Case of Langdale in that Court XXXI Hillary Term 7 Jacobi Regis In the Common-Pleas Morse and Webbs Case IN a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of November in the third year of the Reign of the King that now is in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conusance because that the place where is an Acre of Land which is the Freehold of the said William Sherington and for damage-feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land in parcel of Downfield and that he himself at the time and before the taking c. was and yet is seised of two yard Land with the appurtenances in Luddington aforesaid And that he and all those whose Estate he hath in the said two yards of Land time out of minde c. have used to have Common of pasture per totam contentam of the said place called the Downfield whereof c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep at certain times and seasons of the year as to the said two yards Lands with the appurtenances appertaining and that he put in the said two Oxen to use his Common c. And the Defendant did maintain his Avowry and traversed the Prescription upon which the parties were at issue and the Iury gave a special Verdict That before the taking one Richard Morse Father of the said John Morse and now Plaintiff whose Heir he is was seised of the said two yards Lands and that the said Richard Morse c. had the Common of Pasture for the said Cattel per totum contentum of the said Downfield in manner and form as before is alledged and so seised The said Richard Morse in the twentieth year of Queen Elizabeth demised to William Thomas and John Fisher divers parcels of the said two yards Lands to which c. viz. the four Buts of arable with the Common and intercommon to the same belonging for the term of four hundred years by force of which the said William Thomas and John Fisher entered and were possessed and the said Richard so seised dyed thereof seised by which the said two yards Lands in possession and Reversion descended to the said John Morse the now Plaintiff And if upon the whole matter the said John Morse now hath and at the time of the taking c. had Common of Pasture c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep c. as to the said two Acres of Land with the appurtenances belonging in Law or not the Iury prayed the advice of the Court. Note that this Plea began Trin. 5 Jacobi Rot. 1405. And upon Argument at the Bar and at the Bench it was resolved by the whole Court that it ought to be found against the Defendant who had traversed the Prescription For although that all the two years Lands had been demised for years yet the Prescription made by the Plaintiff is true for he is seised in his Demesn as of Fee of the Freehold of the two yards of Land to which c. And without question the Inheritance and Freehold of the Common after the years determined is appendant to the said two yard Lands and therefore clearly the issue is to be found against the Defendant But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in evidence 2. It was resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shall have Common Rateable and in such manner that the Land in which c. shall not be surcharged and if so small a parcel be demised which will not keep one Ox nor a Sheep then the whole Common shall remain with the Lessor so always as the Land in which be not surcharged 3. It was resolved That Common appendant unto Land is as much as to say Common for Cattel levant and couchant upon the Land in which c. So that by the severance of part of the Land to which c. so prejudice can come to the Ter-tenant in which c. 4. See the Case of in the fourth part of my Reports fo was affirmed for good Law and there is no difference when the Prescription is for Cattel levant and couchant and for a certain number of Cattel levant and couchant But when the Prescription is for Common appurtenant to Land without alledging that it is for Cattel levant and couchant there a certain number of the Cattel ought to be expressed which are intended by the Law to be levant and couchant XXXII Hill 7 Jacobi Regis In the Common-Pleas Hughes and Crowthers Case IN a Replevin between Robert Hughs Plaintiff and Richard Crowther Defendant which began Trin. 6 Jacobi Rot. 2220 The Case was that Charls Fox was seised of six acres of Meadow in Bedston in the County of Salop in Fee and 10 Octob. 9 Eliz. leased the same to Charls Hibbens and Arthur Hibbens for 60 years if the aforesaid Charls Hibbens and Arthur Hibbens should so long live and afterward Charls died and if the Lease determine by his death was the Question and it was adjudged That by his death the Lease was determined for the life of a man is meer collaterall unto the Estate for years otherwise it is if a
the said Act in such case the Appeal was to Rome immediately XXXV Mich. Term 5 Jacob. Rot. 30. In the Kings-Bench Prichard and Hawkins Case JOhn Prichard brought an Action upon the Case against Robert Hawkins for slanderous words publishèd the last day of August in the third year of the King viz. That Prichard which serveth Mistris Shelley did murder John Adams Childe Quandam Isabellam Adams modo defunct filiam cujusdem Johannis Adams of Williamstre in the County of Glocester innuendo upon which a Writ of Error was brought in the Exchequer Chamber upon a Iudgment given for Prichard in the Kings-Bench and the Iudgment was reversed in Easter Term 7 Jacobi because that it doth not appear that Isabel was dead at the time of the speaking the words for tunc defunct ought to have been in the place of modo defunct XXXVI Easter Term. 8 Jacobi In the Kings-Bench Dison and Bestneys Case HUmphrey Dison said of Nicolas Bestney utter Barester and Councellor of Grays-Inn Thou a Barester Thou art no Barester thou art a Barretor Thou wert put from the Bar and thou darest not shew thy self there Thou study Law Thou hast as much wit as a Daw. Vpon Not-guilty pleaded the Iury found for the Plaintiff and assessed damages to 23 l. upon which Iudgment was given and in a Writ of Error in the Exchequer Chamber the Iudgment was affirmed XXXVII Easter Term 8 Jacobi Regis In the Kings-Bench Smith and Hills Case NOah Smith brought an Action of Assault and Battery against Walter Hill in the Kings-Bench which began Pasc 7 Jacobi Rot. 175. upon Not-guilty pleaded a Verdict and Iudgment was for the Plaintiff and 107 l. assessed for damages and costs In a Writ of Error brought in the Exchequer Chamber the Error was assigned in the Venire facias which was certified by Writ of Certiorari and upon the Writ no Return was made upon the back of the Writ which is called Returnum album and for that cause this Easter Term the Iudgment was reversed XXXVIII Trinity Term 7 Jacobi In the Court of Wards Westcots Case IT was found by a Writ of Diem clausit extremum after the death of Roger Westcot That the said Roger the day that he dyed was seised of and in the moyety of the Mannor of Trewalliard in his Demesn as of Fee and of such his Estate dyed thereof seised and that the moyety of the said Mannor anno 19 E. 3. was holden of the then Prince as of his Castle of Trematon parcel of his Dutchy of Cornwall by Knights-service as it appeareth by a certain exemplification of Trematon for the same Prince made 9 Marcii 19 E. 3. And the words of the Extent were Willielmus de Torr tenet duo feoda dimid militis apud Pick Striklestomb Trewalliard per servitum militare reddit inde per annum 8 d. And it was resolved by the two chief Iustices and the chief Baron That the Office concerning the Tenure was insufficient and voyd because that the Verdict of a Iury ought to be full and direct and not with a prout patet for by that the whole force of their Verdict relyeth onely upon the Extent which if it be false he who is grieved shall have no remedy by any Traverse for they have not found the Tenure indefinite which might be traversed but with a prout patet which makes the Office in that point insufficient and upon that a Melius inquirendum shall issue forth and therewith agreeth F. N. B. 255. that a Melius inquirendum shall be awarded in Inch a Case The NAMES of the CASES CAse of the admiralty 7. Jac. 51. Case of S. Alphage parish in Canterbury 8. Jac. 70. Baron and Boyes case 6. Jac. 18. Case of repairing Bridges c. 7. Jac. 33. Bedell and Shermans case 40. Eliz. 47. Baylyes case 7. Jac. 48. Case in Chancery Hill 27. Eliz. 19. Case in the common Pleas. 6. Jac. 26. Collings and Hardings 39. Eli. 57. Case of Modus decinandi 6. Jac. 12. Case de Modo Decimandi and of prohibitions before the King 7. Jac. 37. Disow and Bestneyes case 8. Jac. 71. Edwards case 6. Jac. 9. Case in ejectione firmae 7. Jac. 58. Hulmes case 7. Jac. 61. Haywards and Sr. Iohn Whitebrookes case 64. Hughes and Crowthers case 7. Iac. 66. Haidon and Smiths case 8. Iac. 67. Muttons case 7. Iac. 59. More and Webs case 7. Iac. 65. Neale and Rowses case 6. Iac. 24. Porters and Rochesters case 6. Iac. 4. Ca. of prohibition 6. Iac. 30. Sir Allen Percies case 7. Iac. 60. Parliaments case 7. Ia. 63. Prichard and Haukins case 5. Iac. 71. Sir William Reades Boothes case 7. Iac. 34. Syrat and Heales case 44. Eliz. 23. Case of sewers 7 Iac. 35. Sparye case 7. Iac. 49. Samms case 7. Iac. 54. Smith and Hils case 8. Iac. 71. Taylor and Moyls case 6. Iac. 11. Willowes case 6. Iac. 1. Case in the court of wards 7. Iac. 48. Case in the Court of wards 7. Iac. 49. Wills case 7. Iac. 50. Westcots case 7. Iac. 72. THE TABLE A Acts of Parliament are parcell of the Law so to be judged by the judges of the Law fol. 4. Acts none may take upon him any act c. but who hath knowledge in the same 12. Apples not contained within the words of Stat. 5. E. 6. 14. against ingrossors 18. 19. Actions of claime to be brought within 5. yeares 21. Aid to the King who to pay it 26. 27. 28. For what 29. 30. Made certaine and when to be paid 25. Admirall his power how far it extends 51. 52. Court of Admiralty no Court of record 53. Avoury where it shall be good and maintaineable 58. B Brewer is within the act of the 5. El. 4. for that none may keepe a common brewhouse unlesse formerly apprentice 11. 12. Burgage tenure what it is 27. Bridges rivers sewers c. who ought to repair them and how compellable to it 33. Boote a saxon word the signification whereof various 68. Boote and estovers signifie all one thing 68. C Copyhold where a Copyholder may deny to pay his fine 2. Canterbury Arch bishop thereof cannot cite one out of his owne Diocese and the reason thereof 5. 6. 7. 8. Commission High commissioners their power and to whom extendible 11. 47. Customes what Customes shall be good and when and what not 12. 13. Customes where the Kings Court shall be ousted of jurisdiction in Modo decimandi and where not 18. Customes and prescriptions to be tryed by the common Law 40. Canon Eccles against the Kings perrogative the common law c. ipso facto voide 47. Common of Pasture who shall have it and who shall be debared and why 66. Common divided shall be rateable so that the land in which c. shal not be surcharged 66. Coppyholders may of common right take House-boote hedge boote Plough-boote upon his coppy hold 68. Shall have an action against his Lord for cutting