2. Parl. accord 1 R. 3. against Benevolence Vide Claus 4 Ed. 3. n. 22. bis Case of Libells between Edwards and Wooton In Cam. Stellat The Case was That Doctor Wooton writ to Edmunds an infamous malicious scandalous and obscene Letter with his Name subscribed And this he Sealed and directed to his Loving Friend Mr. Edward Speed this and after the said Doctor dispersed to others a great number of Copies of the said Letter And it was Resolved by the Lord Chancellor Egerton the two chief Justices et per totam curiam That this was a subtle and a dangerous kind of Libell For though the writing of a private Letter without other Publicatior the Party to whom it is directed cannot have an Action Sur le Case but where it is published to others ' to the Plaintiffs Scandal Action lyeth The Doctor thought this could not in any manner have been punish't but 't was Resolved That the infamous Letter which in Law is a Libell shall be punished in the Star-Chamber being an Offence to the King and a motive to breach of the Peace And in the Case at Bar the dispersing of Copies of it aggravates the Offence for which also the Party may have an Action Sur le Case Note By the Civil Law a Person disabling himself to bear Office or making a Libell against himself shall be punished And though the Doctor subscribed his Name to the said Letter yet it importing matter Scandalous is in the Law a Libell The Law of the Lydians is That who slanders another shall be let Blood in the Tongue who hears it and ascents to it in the Ear c. Mich. 5 Jac. Regis Wooton and Edwins Case In Replevin the Defendant avowed and the Plaintiff demurred and the Case was thus William Hawes was seized in Fee of a Messuage and 55 Acres of Land five Acres of Meadow and six Acres of Pasture in Formanton in Com. Hereford and 27. Junii 28 H. 8. by Indenture demised the Tenement aforesaid to N. Traheron for 79 years Reddendo inde annuatim praefat Gulielm Hawes et assign suis 26 s. 8 d. at the Feasts of the Annunciation and St. Michael by equal portions And after the Lessor dyed and the Reversion descended to William his Son under whom the said John Edwin Claimed And the sole Point was If the Rent reserved in this Case shall go to the Heir or be determined by the death of the Lessor If the Lessor had reserved the Rent to him without more this shall determine by the death of the Lessor And the addition of the word Assignes shall not enlarge the reservation for the Assignes cannot have the Rent longer than the Lessor himself should have it Vide 18 Ed. 3. tit Ass 86. 10 Ed. 4. 18. 27 H. 8. 19. per Audlâ—y et vide Hâ—ll 33 Eliz. Rot. 1341. In a Replevin enter Richmond and Butcher Butcher avowed for Rent as Heir to his Father upon a Demise made by his Father of certain Lands for 21 years by these words Reddendo proinde durant termin 21 annos praefat Patri executor et assignat suis 10 l. legalis c. ad festa c. And it was adjudged That by this Reservation the Heir should not have the Rent because the Reservation was to the Father and his Executors c. not to his Heirs Mich. 5 Jac. Regis Case concerning Buggary The Letter of the Statute 25 H. 8. cap. 6. If any Person shall commit the detestable sin of Buggary with Mankind or Beast c. it is Felony which Act being Repealed 1 Mar. is revived and made perpetual 5 Eliz. cap. 17. and he lose his Clergy It appears by antient Authorities of the Law That this was Felony but they vary in the punishment For Britton who writ 5 Ed. 1. cap. 17. saith That Sorcerers Sodomers and Hereticks shall be burned F. N. B. 269. agrees with it But Fleta lib. 1. cap. 35. Christiani Apostati c. debent cumburi this agrees with Britton but Pecorantes et Sodomitae terra vivisâ—ffodiantur But in the Mirror of Justice vouched in Plow Com. in Fogosses Case the Crime is more high for there it is called Crimen laesae majestatis a horrible Sin against the King either Celestial or Terrestial in three manners 1. By Heresy 2. By Buggary 3. By Sodomy Note Sodomy is with mankind and is Felony and to make that Offence Opertet rem penetrate et semen naturae emittere et effundere for the Indictment is Contra ordinationem Creatoris et naturae ordinem rem habuit veneream dictumque puerum carnaliter cognovit and so it was held in the Case of Stafford Paederastes â—mator puerorum Vide Rot. Parl. 50 Ed. 3. 58. So in a Rape there must be penetration and emission of Seed Vide Stamf. fol. 44. which Statute makes the Accessary Guilty of Felony West 1. cap. 34. If a Man ravish a Woman 11 H. 4. 18. If one Ayd another in a Rape or be present he is principle in the Buggary Vide Levit. 18. 22. et cap. 10. 13. 1 Cor. 6. Case of Premunire In Doctor Cosines Book intituled An Answer c. and publisht 1584. And a Pamphlet lately publisht by Doctor Ridley they would obtrude upon the World That in regard by the Act 10 Eliz. cap. 1. all Spiritual and Ecclesiastical Power within the Realm is annexed to the Crown and the Law thereof is the Kings Ecclesiastical Law That therefore no Premunire lyes against any Spiritual Judge for any cause whatsoever And the Reasons some of their Profession give to confirm it are 1. That when the Statute of Premunire was made the Pope usurped Ecclesiastical Jurisdiction though de jure it belonged to the King But now since the King as well de facto as de jure is Supream Head of all The cause being changed the Law is changed also 2. â—T conclusion of the Writ of Premunire is in Domini Regis contemptum et prejudicium et dictae Coronae et dignitatum suarum Laesionem et exhaeredationem manifestam et contra forman statuti c. which proves the Jurisdictions united to the Crown and what is united to and derived from the Crown cannot be said contra Coronam et dignitatem Regis 3. The High Commission Court is the Kings Court and therefore though it may be said The Consistory Courts are Curiae Episcoporum yet that Court by force of the High Commission is the Kings and so their Proceedingâ— shall not be lyable to the Premunire 4. This new Court is erected by Act of Parliament c. And because the Sâ—atute of R. 2. speaks de curia Romana seu alibi c. This alibi cannot extend to a Court erected by Act of Parliament 10 Eliz. But to these Objections it was answered and resolved by divers Justices in this Term That without Question theâ— Statutes of 27 Ed. 3. 16 R. 2. c. de Premunire are yet in force And all proceedings before any
c. But if a man be convict in the Star-Chamber for Forgery upon the Stat. 5 Eliz. In that Case for the double Costs and Damages an English Writ shall be made directed to the Sheriff c. reciting the Conviction and Statute for levying the said Costs and Damages c. and to bring the money into Star-Chamber and the Writ shall be sealed with the Great Seal and the Teste of the King The like Resolution was in Langdale's Case in that Court Hill 7 Jac. Regis In the Common-Pleas Morse and Webb's Case In a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of Novemb. 3 Jac. regis nunc in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conuzance because the place where is an Acre of Land which is the Freehold of the said William Sherrington and for Damage feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land is parcel of Downfield and that he himself at the time and before the taking c. was and is yet seized of two yard-Yard-Land with the Appurtenances in Luddington and that he and all those whose Estate he hath in the said 2 yard-Yard-Land time out of mind c. have used to have Common of Pasture per totam contentam of the said Place called the Downfield whereof c. for 4 Beasts called Rother-Beasts and two Beâ—sts called Horse-Beasts and for 60 Sheep at certain times in the Year c. And that he put in the said two Oxen to use his Common c. And the Defendant maintained his Avowry and traversed the Prescription upon which the Parties were at Issue and the Jury found a special Verdict That before the taking one Richard Morse Father of the said John Morse now Plaintiff whose Heir he is was seized of the said two yard-Yard-Land and had Common of Pasture c. as is before alleadged and so seized the said Richard Morse 20 Eliz. demised to William Thomas and John Fisher divers parcels of the said two Yard-Land to which c. viz. the four Butts of Arable with the Common and Inter-Common to the same belonging for 400 years By force whereof the said William Thomas and John Fisher entred c. so seized dyed whereby the Possession and Reversion of the said two yard-Yard-Land descended to John Morse now Plaintiff And if upon the whole Matter John Morse now hath and at the time of the taking c. had Common of Pasture c. for c. as to the said two Acres of Land with the Appurtenances in Law or not the Jury pray the Advice of the Court. Note This Plea began Trin. 5 Jac. Rot. 1405. and upon Argument at the Bar and Bench 1. It was Resolved by the whole Court That it ought to be found against the Defendant who had traversed the Prescription For though all the two Yard-Lands had been demised for years yet the Prescription made by the Plaintiff is true 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. 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 shâ—ll have Common rateable and in such manner that the Land in which c. shall not be surcharged 3. Resolved That Common appendant to Land is as much as to say for Cattel leuant and couchant upon the Land in which c. 4. There is no difference when the Prescription is for Cattel leuant and couchant and for a certain numbâ—r of Cattel leuant and couchant But when the Prescription is for Common appurtenant to Land there a certain number of the Cattel ought to be expressed which are intended by the Law to be leuant and couchant Hill 7 Jac. Regis In the Common-Pleas Hughes and Crowther's Case In a Replevin between Robert Hughes Plaintiff and Richard Crowther Defendant which began Trin. 6. Jac. Rot 2220. The Case was Charles Fox was seized of 6 Acres of Meadow in Bedston in the County of Salop in Fâ—â— and 10 Octob. 9 Eliz. leased the same to Charles Hibbens and Arthur Hibbens for 60 years if the said Charles and Arthur should so long live and afterwards Charles dyed 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 if a Lease be made to for the Lives of J. S. and J. N. See Brudnel's Case in the 5th Part of my Reports which Case was affirmed for good Law by the whole Court Pasch 8 Jac. Regis In Communi Banco Heydon and Smith's Case Richard Heydon brought an Action of Trespass against Michael Smith and others of breaking his Close called the Moor in Ugley in the County of Essex the 25 day of June 5 Jac. Et quandam arborem suam ad valentiam 40 s. nuper crescen succiderunt The Defendants said that the Close and at the time of the Trespass was the Freehold of Siâ— John Leventhrop Knight c. and that the said Oak was a Timber-Tree of 30 years growth and more and justifies the cutting down of the Tree by his Command The Plaintiff replyes and saith That the said Close and a House and 28 Acres of Land in ugley are Copy-hold and parcel of the Mannor of Ugley c. Of which Mannor Edward Leventhrop Esq Father of Sir John Leventhrop was seized in Fee and granted the said House Lands and Close to the said Richard Heydon and his Heirs by the Rod at the Will of the Lord according to the Custome of the said Mannor and that within the Mannor there is such a Custome Quod quilibet teneres Customar ejusdem Manerii sibi haeredibus suis ad voluntat Dom. c. a toto tempore supradicto usus fuit ad ejus libitum amputare ramos â—mnimodum arborum called Pollingers or Husbords super terris tenement suis Customar crescen pro ligno combustibili c. and also to cut down and take all manner of Trees called Pollingers and Husbords and all other Timber Trees c. for reparation of their Houses and also for Plough-boot and Cart-boot and that all the Trees c. hitherto growing upon c. were not sufficient for the necessary uses aforesaid And that the said Richard Heydon from the time of the said Grant had preserved c. all Treas c. growiâ—g upon the said Lands to him granted and that after the said Edward Leventhrops death the Mannor descended to the said Sir John and that at the time of the Trespass the aforesaid Messuage of the said Richard Heydon was in decay c. upon which the Defendant demurred in
caetero 2. Obâ—enta in contrarium consuetudine non obstante And this agrees with the Register and Treaties de Regia prohibitione and the other Authorities And it appears in Linwood cap. jurejurandi fol. 8. 9. That Boniface Archbishop of Canterbury 1272. 57 H. 3. made this Cannon Statuimus quod Laici de subditorum peccatis c. per praelatos judices Ecclesiaslicos inquiratur ad praestandum de veritate dicenda Sa ramentum per excommunicationis sententias si opusfuerit compellantur impedientes vero ne hujusmodi juramentum praestetur per interdict est excommunicatio c. In which Cannon it is to be noted That it extends to Lay-People And note Linwood saith cap. Jurejurandi fol. 6. litera E. Hic dicitur causa editionis hujus c. Praelati c. procedebant ad inquirendum de criminibus c. Laici nota hic suffult potestate dominorum in hujusmodi inquisitionibus noluerint jurare de veritate dicenda 1. Note Why Lay-people refused to be examined for Crimes and Excess 2. The Judges of the Common-Law by their Prohibition did interdict c. as appears by their Register and other Authorities in Ed. 1. time c. 3. That where by the Law they may examine Lay-people upon Oath in causis matrimonialibus testamentariis Here Boniface makes the Canon to extend to Peccata excessus which Canon was utterly against the Law and Custom of England See another at the same time in Linwood Cap. de Benef. fo 231. And this is declared by Act of Parliament made 9 Ed. 2. called Articuli Cleri si Praelati imponant poenam pecuniariam alicui pro peccato c. Regis prohibitio locum habet Trin. 5 Jac. Regis Case concerning Pardons The Law so regards the Weal-publike that though the King shall have the Suit solely in his Name for the redress of it yet by his Pardon he cannot discharge the Offender because it is not onely in prejudice of the King but in damage of the Subjects If a man ought to repair a Bridge and for default of Reparation it fall to decay in this Case the Suit ought to be in the King's Name and he is sole Party to it but for the benefit of his Subjects And if the King pardon it yet the Offence remains but peradventure the Pardon shall discharge the Fine for the time past And with this agrees 37 H. 6. 4. 6 Plow Con. in Nichol's Case 487. A multo fortiori in case of Depopulation for this is not onely an Offenc against the King but against all the Realm for by this the Realm is infeebled and therefore Depopulation and Diminution of Subjects is a greater Nusance than the hindrance of Subjects in their good and easie passage by any Bridge or High-way And for this notwithstanding the King's Pardon he shall be bound to re-edifie the Houses of Husbandry which he depopulated and though for the time before the Pardon perchance he shall not be Fined yet without doubt he shall for the time after For the Offence it self cannot be pardoned as in Case of a Bridge or High-way because it is malum in se But this continues as to the Fine and Imprisonment at all times after the Pardon But the Penalty inslâ—cted by the Statute may be discharged Quia prohibitum Vide 3 Ed. 3. Tit. Ass 443. But when the King chargeth his Subjects for the making of a Bridge or Cawsie or Wall c. there the King may discharge the Pontage Murage c. Note If one be bound to the King in a Recognizance to keep the Peace in this Case the King before the Peace broken cannot pardon and release the Recognizance as 't is agreed 11 H. 4. 43. 37 H. 6. 4. 1 H. 7. 10. because it is made for the Safety of the King's Subjects Note No Licence can be made to do any thing that is Malum in se but Malum prohibitum 11 H. 7. 11. 3 H. 7. 39 H. 6. 39. Trin. 5 Jacobi Regis Case of Commissions Note Commissions in English under the Great Seal were directed to divers Commissioners in the Counties of Bedford â—ucks Huntington Northampton Leicester and Warwick to inquire of divers Articles annexed which were also in English to inquire of depopulation of Houses converting Arable Land into Pasture c. the Commissioners onely to have power to enquire not to hear and determine By colour whereof many Presentments wiere taken in English and returned into the Chancery and after viz. Trin. 5 Jac. It was Resolved by the two Chief Justices Walmesly Fenner Yelverton Williams Snig Althum and Foster that the said Commissions were against Law for three Reasons 1. Because they were in English 2. Because the Offences inquirable were not certain in the Commission but in a Scâ—edule annexed 3. Because that it was onely to enquire which is against Law for so a man may be unjustly accused or defamed and shall have no Remedy nor Traverse to it for it is not within the Statute of the 5 Eliz. At Common-Law Assizes were not taken but before Justices in Eyre who sit virtute brevis every seventh year Vid. Britton fo 1. and Bracton lib. 5. and 11. or in the Common-Pleas And because this was a great trouble it was provided by Magna Charta cap. 30. Quod requisitiones de nova disseizina de mort ' d'an cester non capientur nisi in propriis Comitatibus c. And after by the Statute of Westminster 2. cap. 30. it was provided Quod assignentur duo Justiciarii jurati coram quibus et non aliis capiantur assiz ad plus ter per annum By which Act justices of Nisi Prius were constituted of other Pleas as well of one Bench as the other Coram quibus c. And by the same Act Justices of Nisi Prius may give Judgment in Assizes of Darreine presentment and quare Impedit Then came the Statute 21 Ed. 3. de flâ—ibus cap. 4. and provided that inquisitioâ—es et recognitiones capiantnr tempore vacationis generally before aliquo Justiciario de utroque Banco coram quibus c. And after by the Statute of York cap. 3. It is provided That in Plea of Land Nisi Prius shall be taken before one of the Justices c. and Cap. 4. That no other Pleas moved by Attachment or Distress shall be taken before any Justice c. By the 14 Ed. 3 cap. 15. Nisi Prius may be taken in any Plea before two so one be Justice of one Bench or Chief Justice or Serjeant sworn By the Statute de finibus cap. 3. Justiciarii ad assizas capiend assignati deliberant Gaolas in Com. illis c. vide de recitat del Stat. 28 Ed. 1. de appellat which recites the Statute defâ—lonia Felony formerly included Trespass vide Stamf. 57. 3 H. 3. cap. 7. gives power to Justices of Assize to hear and determine Treason concerning false Money 14 H. 6. cap. 1. gives
same Term the said Judges of the Kings Bench Barons of the Exchequer and Justice Fenner and Yelverton who were omitted before and We the Justices of the Common-Bench were commanded to attend the Council And being all assembled We of the Common-Pleas were commanded to retire and then the King demanded their Opinions in certain Points touching the High-Commission wherein they unanimously agreeing We viz. Coke Walmesly Warberton and Foster were called before the King Prince and Council where the King declared That hy the Advice of his Council and the Justices of the Kings Bench and Barons he will reform the High-Commission in divers Points which after he will have to be obeyed in all Points Whereupon I said to the King That it was grievous to Us his Majesties Justices of the Bench to be severed from our Brethren but more grievous that they differed from us in Opinion without hearing one another especially since in what we have done in Sir VVilliam Chancys Case aud others the like concerning the Power of the High-Commissioners was done judicially in open Court upon argument at the Bar and Bench. And further I said to the King that when we the Justices of the Common-Pleas see the Commission newly reformed We will as to that which is of Right seek to satisfie the Kings expectation and so We departed c. Trin. 9 Jac. Regis Stockdale's Case in the Court of VVards The King by Letters Patents dated 9. April the ninth year of his Reign did Grant to VVilliam Stockdale in these words Such and so many of the Debts Duties Arrearages and Sums of Money being of Record in our Court of Exchequer Court of Wards Dutchy-Court or within any Court or Courts c. in any year or several years from the last year of the Reign of H. 8. to the 13th year of Our Dear Sister as shall amount to the sum of 1000 l. To have takâ— levy c. the said Debts c. to the said VVilliam Stockdale his Executors c. And in this Case divers Points were resolved 1. That the said Grant of the King is void for â—he incertainty for thereby no Debt in certain can pass As if the King have an 100 Acres of Land in D. and he Grants to a Man 20 Acres of the Lands in D. without describing them by the Rent Occupation or Name c. this Grant is void 2. When the Patentee Claims by force of this word Arreragia It was resolved clearly That he shall not have Arrearages of Rents Reliefs and mean Rates of Lands c. in the Court of Wards c. if the Patent go not further But the Proviso in the end of the Patent viz. Provided that the said VVilliam Stockdale shall take no benefit by any means of Arrearages of any Rents c. untill Sir Patrick Murrey and others be paid the sum of 1000 l. c. hath well explained what Arrearages the King intended But clearly mean Rates are not within the words for they are the Profits of Demesne Land Trin. 9 Jacobi Regis Divers men playing at Bowles at great Marlow in Kent two of them fell out and a third man who had not any quarrel in revenge of his Friend struck the other with a Bowl of which he dyed This was held Manslaughter because it happened upon a suddain motion In the same Term a special Verdict divers years past found in the County of Hertford which was That two Boyes fighting together one was seratched in the Face and bled very much at the Nose and so he run three quarters of a Mile to his Father who seeing his Son so abused he took a Cudgel and run to the place where the other Boy was and stroke him upon the Head upon which he dyed And this was held but Man-slaughter for the Passion of the Father was continued and no time to judge it in Law Malice prepense And this Case was moved ad mensam c. Mich. 9 Jac. Regis Memorandum upon Thursday in this Term a High Commission in Causes Ecclesiastical was published in the Archbishops great Chamber at Lambeth in which I with the Chief Justice Chief Baron Justice VVilliams Justice Crooke Baron Altham and Baron Bromly were named Commâ—ssioners among all the Lord of the Council divers Bishops Attorney and Sollicitor and divers Deans and Doctors in the Cannon and Civil Laws And I was commanded to sit by force of the said Commission which I refused for three Causes 1. Because neither I nor any of my Brethren of the Common-Pleas were acquainted with it 2. Because I did not know what was contained in the new Commission and no Judge can execute any Commission with a good Conscience without knowledg for Tantum sibi est permissum quantum est Commissum 3. That there was not any necessity of my sitting who understood nothing of it so long as the other Judges whose advise had been had in this new Commission were there 4. That I have endeavoured to inform my self of it by a Copy from the Rolls but it was not enrolled 5. None can sit by force of any Commission till he hath taken the Oath of Supremacy according to 1 Eliz. and if I may hear the Commission read and have a Copy to advise upon I will either sit or shew cause to the contrary The Lord Treasurer perswaded me to siâ— but I utterly refused it and the rest seemed to incline Then the Commission was openly read containing divers Points against the Laws and Statutes of England At hearing of which all the Judges rejoyced they sate not by it Then the Archbishop made an Oration during all which as the reading of the Commission I stood and would not sit and so by my Example did the rest of the Judges And so the Archbishop appointed the great Chamber at Lambeth in Winter and the Hall in Summer and every Thursday in the Term at two a clock Afnoon and in the Forenoon one Sermon Mich. 9 Jacob. Regis In this Term the Issue in an Information upon the 〈◊〉 2 H. 6. 15. was tryed at the Bar and upon Evidencâ— upon the words of the Statute which are That evâ—â—y person that sets or fastens in the Thames any Nets or Enâ—iâ—â—s called Trincks or any other Nâ—ts to any â—â—sts c. to stand continually day and night forfeits to â—he King 100 s. for every time c. And the Defendants having set and fastned Nets called Trincks in the Thames c. to Boats day and night as long as the Tide served and nor continually The Question was If this was within the Statute and it was clearly Resolved That it was within the Statute for the Nets called Trinks cannot stand longer than the Tyde serve and for this the word continually shall be taken for so long as they may stand to take Fish for lex non intendit aliquid impossibile Mich. 9 Jacob. Regis Shulters Case in the Star-Chamber The Case was such John Shulter of Wisbich of the age of 115 years
of the Perjury by all the Lords in the Star-Chamber and it was Resolved by all That it was by the Common-Law punishable before any Statute Hayes Case in Cur-Wardorum By Inquisition in the County of Middlesex Anno 6 Jac. by vertue of a diem clausit extremum after the death of Humphry Willward it was found that the said Humphry died seized of a Messuage and 26 Acres of Land in Stepney and that John Willward was his Heir being 14 years and 9 days old and that the Land was held of the King in capite by Knights Service John Willward died within age and by Inquisition in Middlesex 8 Jun. Anno Jac. by vertue of a Writ of Deveneront after the said John's death it was found that John dyed seized in Ward to the King and that the said Messuage and Lands at the time of the said John's death were holden of the Dean of Pauls as of his Mannor of Shadwel All the mean Rates incurred in John's life-time are paid to the King 1. The Questions are 1. Whether by John's death and finding of the mean Tenure in the Deveneront the fiâ—st Office granted to Points be determined 2. Whether the Tenure found by the first Office may be traversed And as to these Questions it was Resolved by the two Chief Justices and chief Baron That where the said John dyed the Office found by force of the Diem clausit extremum after Humphries death whereby the King was entituled to the Guardianship of John hath taken its effect and is executed and does remain as Evidence for the King after Johns death but yet is not traversable for it is traversable during the time it remains in force onely and the Jurors upon the Deveneront after the death of the said John are at liberty to find the certainty of the Tenure and they are not concluded by the first Inquisition and with this agrees 1 H. 4. 68. And this appears by the diversity between the Writ of Diem clausit extremum and the Deveneront which is but in one Point to wit the Diem clausit extremum is general And the Deveneront is not general but does restrain onely the Lands and Tenements quod deveneront c. And thus it was Resolved nono Jacobi in the Court of Wards in the Case of Dune Lewis Award of Capias Uâ—lagatum by Justices of the Peace In this same Term the Opinion of all the Court of Common-Pleus was That if one be out-lawed before Justices of Assize or Justices of Peace upon an Indictment of Felony that they may award a Capias Utlagatum and so was the Opinion of Pâ—riam Chief Baron and all the Court of Exchequer as to Justices of Peace for they that have power to award process of Outlawry have also power to award a Capias utlagatum See 34 H. 8. c. 14. See Lamb. Justice of Peace fol. 503. contra But see 1 Ed. 6. cap. 1. Justices of Peace in case of Profanation of the Sacrament shall award a Capias Utlagatum throughout all England Hersey's Case Star-Chamber John Hersey Gent exhibited his Bill in the Star-chamber against Anthony Barker Knight Thomas Barker Councellor at Law Robert Wright Doctor of Divinity Ravenscroft Clerk and John Hai is and thereby charged the Defendants with forging the Will of one Margery Pain and the Cause came to Hearing ad requisitionem defendentium and upon hearing the Plaintiffs Councel there appeared no Presumption against any of the Defendants but that the Testament was duly proved in the Ecclesiastical Court and upon an Appeal was also affirmed before Commissioners Delegates and Decreed also in Chancery So that it appeared to the Court that the said Bill was preferred of meer malice to slander the Defendants Now because the Defendants had no Remedy at Law for the said Slander and if it should pass unpunished it may encourage men It was Resolved by the Court That by the course of the Court and according to former Presidents the Court may give Damages to the Defendants and so it was done viz. 200 l. to the Doctor of Divinity 200 Marks to the Knight 40 l. to the Clerk 120 l. to the Woman And it was said that Creare ex ihilo quando bonum est est divinum sed creare aliquid ex nihilo quando est malum est diabolicum et plus Maledicite nocâ—nt quam Benedicite docent Hill 2 Jac. Regis Theodore Tomlinson brought an Action of account for Goods against one Philips in the Common Pleas and thereupon Philips sued Tomlinson in the Admiralty supposing the Goods to have been received in Forraign Parts beyond Sea and Tomlinson being committed for refusing to answer upon his Oath to some Interrogatories brought his Habeas Corpus Upon which it was resolved by the Court of Common plea in thrâ—e Points viz. 1. That the Court of Admiralty hath no Cognizance of things done beyond Sea and this appears plainly by the Statute 13 R. 2. cap. 5. and the 19 H 6. fol. 7. 2. That the Proceedings in the Court of Admiralty are according to the Civil Law and therefore the Court is not of Record and so cannot assess a Fine as the Judges of a Court of Record may 3. It doth appear that the Interrogatories were of such things as were within their Jurisdiction and the Parry ought by Law to answer This Case was intended by my Lord Coke to be inserted into his 7th Report but that the King commanded it should not be Printed but the Judges resolved ut supra Corven's Case Right to Sâ—ats in the Church Corven did Libel against Pym for a Seat in a Church in Dâ—vonshire And Pym by Sergeant Hutton moved for a Prohibition upon this Reason that himself is seized of a House in the said Parish and that he and all whose Estates he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court that if a Lord of a Mannor or other Person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their Charges that if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of the Church iâ— a Question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed that the Ordinary who hath Cure of Soules will take Order in such Cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Dame Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in the Kings-Bench against a Parson Quare Tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it is there
and for this he ought to be indicted for the words which he himself spake and then De non apparentibus non existentibus eadem ratio And it was Resolved That if A. say to B. Did you not hear that C. is guilty of Treason c. This is tantamount to a Scandalous Publication If J. S. publish that he hath heard generally without a certain Author that J. G. was a Traytor or Thief there an Action Sur le case lyeth against J. S. And a Record was vouched Mich. 33 and 34 Ed. 3. and in the 30 Ass pl. 10. and in the Exchequer Miâ—h 18. Ed. 1. Rot. 4. The Defendants in the Case at Bar for publication of the said words all the Defendants were punish'd by all the presence una voce nullo contradicente by Fines and Imprisonment Goodrick and Ingrum were Fined the most because one could find no Author for the Words concerning the Cinque-Ports nor the other any other than unknown persons of Ligorn and therefore 't was taken as a Fiction of his own Trin. 10 Jac. Regis Eastwick's Case iâ— Curia Wardorum King Philip and Queen Mary by their Letters-Patents de gratia speciali c. granted to Aringal Wade in Fee thâ— Farm called Milton Grange in the County of Bedford parcel of the Possessions of the late dissolved Monastery of Wooburn Tenendum praed firmam de nobis successoribus nostris ut de Manerio nostro de East-Greenwich in Com. Kent in capite per servitium vicessimae partis unius Feodi Militis pro omnibus redditibus c. quibuscâ—nque Which Grange by mean Conveyance came to Christopher Eastwick after whose death the Tenure was found verbatim according to the words of the Patents And the Question was If the Tenure was by a mean as of the said Honour or in Capite And their principal Reason was That the Letters-Patents shall be construed to the Kings Intention expressed and in this Case some Words ought to be rejected scil these words in Capite or these words De mancrio nostro de East-Greenwich for both together cannot stand and then the better shall be taken for the King as 5 Mary Dyer 162. 15 H. 7. 7. 14 Ed. 4. 5. 3 H. 7. 12. 9 H. 7. 9. 6. per Huffey 13 H. 7. 4. per Fineaux 19 H. 8. Title Office Brooks 58. Action But it was Answered and Resolved That the said Grange was held of the King as of the Honor and not in Capite And the Reason was because that Tenure of the King in Capite is as much as to say Tenure in gross or of the Person of the King And it appears by antient Records that in Old Time all Tenures in Gross or of the Person of a Subject were called Tenures in Capite as in Claus 9 H. 3. membr 28. and many other Records but of late time Dicitur de rege solummodo terras teneri in Capite And therefore when it is said Tenendum de nobis in Capite ut de manerio nostro de East-Greenwich c. Inasmuch as it is limited to hold of the King who is Chief it may be vulgarly said That the Tenure is in Chief inasmuch as it is of the King as of a Mannor Secondly It was Resolved That the abundant Words shall be extended in Construction of the Law and not the Words subsequent which limit the Term in certainty And with this Resolution agrees Mich. 17 and 18 Eliz. 345. Nota That a Tenure of any antient Honors as of Rawlâ—igh Hagenet and Peverel are by way of Usage and Allowance in all Ages taken to have the effect of a Tenure in Capâ—te viz. To have all the Lands in Guard c. Et non valet ratio contra experimentum See Mag. Chart. cap. 31. and 11 H. 7. in Rot. Parliam not Printed and 1 H. 6. c. 4. Bracton lib. 2. fol. 87. 30 H. 8. Dyer 8. 58. 29 H. 8. Brook Title Livery 28. 57. 5 Ed. 3. 5. Finis Libri Duodecimi LIB 13. ult Mich. Anno 6. Jacobi Regis In the Common-Pleas Willow's Case IN Trespass brought by Richard Stallon against Thomas Bradye which began in Easter Term 6 Jac. rot 1845. for breaking his House and Close at Fenditton in Com. Cambridge And the New Assignment was in an Acre of Pasture The Defendant pleads that the Place where c. was the Land and Freehold of Thomas Willowes and Richard Willowes and that he as Servant c. The Plaintiff for Replication saith That the Place where was parcel of the Mannor of Fenditton and demisable c. by Copy of Court-Roll in Fee-simple and that the Lords of the Mannor granted the Tenements in which c. to John Stallon and his Heirs who surrendred them to the said Willowes and Willowes Lords of the said Mannor to the use of the Plaintiff and his Heirs who was admitted c. The Defendant rejoyns and saith True it is that the Tenements in which c. were parcel of the Mannor and demisable c. and the surrender and admittance such prout c. But the said Bradye further saith That the Tenements in which c. at Richard Stallons Admission were and yet are of the clear yearly value of 53 s. 4 d. and that within the Mannor there is such a Custome Quod ratâ—onabilis denariorum sumna legalis monetae Angliae super quamlibet admissionem cujusâ—ibet persoâ—ae teaâ—at per Domiâ—um vel Dominos Manerii praed sive per seâ—â—sch c. ad aliquas terras c. secundum cons Maner illius debetur a tempore quo c. debitum fuit Dom. c. tempore ejusdem admission pro fine c. quod idem Dominus vel Domini vel seneschallus suus Cur. ejusdem Mâ—nerii pro tempore existen usus fuerit vel usi fuer per tot tempus praed in plena Cur. Manâ—r illius pro admissione ejusdem personae seu earund personar sic facta assidere appunctuare Anglicè Assess and Appoint eand rationabil summam denarior c. Et summam sic assessam personae admissae c. solverent c. eidem Don. c. And further saith That the Steward of the said Mâ—nnor at a Court holden the first of October Anno quarto Regis nunc admitted the Plaintiffs to the Tenements in which c. and assessed and set a reasonable sum of money viz. 5 l. 6 s. 8 d. viz. Valorem eoâ—undem tenementor per duos annos non ultra pro fine pro praed admissione c. And the said Steward at the same Court gave notice to the Plaintiff the said sum was to be paid c. And further saith That the Willowes and Willowes afterwards viz. 2 Novem. in the 4th year aforesaid at Fendittoâ— aforesaid requested the said Richard Stallon to pay them the said 5 l. 6 s. 8 d. which the said Richard utterly refused c. By which the said Richard forfeited to the said Thomas and Richard Willowes
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