CERTAIN SELECT CASES IN LAVV REPORTED BY Sir EDVVARD COKE Knight LATE Lord CHIEF JUSTICE OF ENGLAND And one of His Majesties Council of STATE Translated out of a Manuscript written with his own hand Never before Published With two Exact Tables the one of the Cases and the other of the Principal Matters therein contained LONDON Printed by Tho. Roycroft for J. Sherley H. Twyford and Tho. Dring and are to be sold at their Shops at the Pelican in Little-Brittain in Vine-Court Middle Temple and at the George in Fleetstreet 1659. TO THE READER READER IT may seem altogether an unnecessary work to say any thing in the praise and vindication of that Person and his Labours which have had no less then the generall approbation of a whole Nation convened in Parliament For if King THEODORICK in Cassiodore could affirme Neque enim dignus est a quopiam redargui qui nostro judicio meretur absolvi That no man ought to be reproved whom his Prince commends How much rather then should men forbear to censure those and their Works which have had the greatest allowance and attestation a Senate could give and to acquiesce and rest satisfied in that judgement Such respect and allowance hath been given to the learned Works of the late Honourable and Venerable Chiefe Justice Sir EDWARD COKE whose Person in his life time was reverenced as an Oracle and his Works since his decease cyted as Authentick Authorities even by the Reverend Judges themselves The acceptance his Books already extant have found with all knowing Persons hath given me the confidence to commend to the publick view some Remains of his under his owne hand-writing which have not yet appeared to the World yet like true and genuine Eaglets are well able to behold and bear the light They are of the same Piece and Woofe with his former Works and in respect of their owne native worth and the reference they bear to their Author cannot be too highly valued Though in respect of their quantity and number the Reports are but few yet as the skilfull Jeweller will not lose so much as the very filings of rich and precious mettals and the very fragments were commanded to be kept where a Miracle had been wrought Propter miraculi claritatem evidentiam So these small parcels being part of those vast and immense labours of their Author great almost to a Miracle if I may be allowed the comparison were there no other use to be made of them as there is very much for they manifest and declare to the Reader many secret and abstruse points in Law not ordinarily to be met with in other Books so fully and amply related deserve a publication and to be preserved in the respects and memories of Learned men and especially the Professors of the Law and to that end they are now brought to light and published If any should doubt of the truth of these Reports of Sir EDWARD COKE they may see the originall Manuscript in French written with his own hand at Henry Twyfords Shop in Vine-Court Middle Temple Farewell J. G. MICH. AN. 6 JACOBI REGIS In the Common Pleas. Willowes Case IN Trespasse brought by Richard Stallon one of the Attorneys of the Court against Thomas Bradye which began in Easter Copyhold Fine reasonable Term An. 6 Jacobi Rot. 1845. for breaking of his House and Close at Fenditton in the County of 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. And the Plaintiff for Replication saith that the place where was parcell 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 unto the said Willowes and VVillowes Lords of the said Mannor to the use of the Plaintiff and his heirs who was admitted accordingly c. The Defendant doth rejoyn and saith That well and true it is that the Tenements in which c. were parcell of the Mannor and demisable c. And the surrender and admittance such pro ut c. But the said Thomas Bradye further saith that the Tenements in which c. at the time of the Admission of the said Richard Stallon were and yet are of the clear yearly value of fifty three shillings and four pence And that within the said Mannor there is such a Custome Quod rationabilis denariorum summa legalis monetae Angliae super quamlibet admissionem cujuslibet personae sive quarumcunque personarum tenent vel tenent per Dom. vel Dominos Manerii praedict sive per Seneschallum c. ad aliquas terras sive Tenementa Customaria Manerii praedict secundum Consuetudinem Manerii illius debetur a tempore quo c. debitum fuit Dom. c. tempore ejusdem admissionis pro sine pro admissione illa quod idem Dominus vel idem Dom. praedict vel Seneschallus suus Curiae ejusdem Manerii pro tempore existen usus fuit vel usi fuerunt per totum Tempus supradict in plena Curia Manerii illius pro Admissione ejusdem personae seu earundum personarum sic facta assidere appunctuare Anglice to Assesse and appoint eandem rationabilem denariorum summam pro fine pro eadem Admissione sic praefertur facta nec non superinde eandem denariorum summam sic assessam appunctuatam praefatae personae sive personis sic admissae sive admissis solveret solverent c. eidem Domino c. praedictam rationabilem denariorum summam pro fine pro Admissione sua praedict sic assessam appunctuat And further saith That the Steward of the said Mannor at a Court holden 1. Octob. in the fourth year of the Reigne of the King that now is admitted the Plaintiff to the Tenements in which c. and assessed and set a reasonable summ of money that is to say five pounds six shillings eight pence that is to say Valorem corundem tenementorum per duos annos non ultra pro fine pro praedict Admissione praedict Richard Stallon to the said Lords of the Mannor to be paid And also the said Steward at the same Court did give notice and signifie to the Plaintiff the said summ was to be paid to the said Lords of the Mannor c. And further saith that the said VVillowes and VVillowes afterwards that is to say the second day of November in the fourth year aforesaid at Fenditton aforesaid requested the said Richard Stallon to pay to them five pounds six shillings eight pence there for the Fine for his admittance c. which the said Rich. Stallon then and there utterly denied and refused and as yet doth refuse By which the said Richard Stallon forfeited to the aforesaid Thomas and Richard
suam c. succidit for Custom hath fixed it to his Estate against the Lord and the Copyholder in this case hath as great an interest in the Timber Trees as he hath in his Messuage which he holdeth by Copy and if the Lord breaketh or destroyeth the House without question the Copyholder shall have an Action of Trespass against his Lord Quare Domum fregit and by the same Reason for the Timber Trees which are annexed to the Land and which he may take for the Reparation of his Copyhold Messuage and without which the Messuage cannot stand Trinit 40 Eliz. Rot. 37. in the Kings-Bench between Stebbing and Grosener The custom of the Mannor of Netherhall in the County of Suffolk was that every Copyholder might lop the Pollengers upon his Copyhold pro ligno combustibili c. And the Lord of the Mannor cut down the Pollingers being upon the Plaintiffs Copy-hold upon which he brought his Action upon the case because that the lops of the Trees in such case did belong to the Copyholder and they were taken by the Lord. See Taylors case in the fourth part of my Reports 30 and 31. and see 5 H. 4 2. Guardian in Knight-service who hath Custodiam terrae shall have an Action of Trespass for cuting down the Trees against the Heir who hath the inheritance Vide 2 H. 4. 12. A Copyholder brought an Action of Trespass Quare clausum fregit arbores succidit and see 2 E. 4. 15. A Servant who is commanded to carry goods to such a place shall have an Action of Trespass or Appeal 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. It after taking the goods the owner hath his goods again yet he shall have a general Action of Trespass and upon the evidence the damages shall be mitigated so is the better Opinion in 11 H. 4. 23. That he who hath a special property of the goods at a certain time shall have a general Action of Trespass against him who hath the general property and upon the evidence damages shall be mitigated but clearly the Baylee or he who hath a special property shall have a general Action of Trespass against stranger and shall recover all in damages because that he is chargeable over See 21 H. 7. 14. b. acc And it is holden in 4 H. 7. 3. That Tenant at sufferance shall have an Action of Trespass in respect of the possession and if the Defendant plead Not-guilty but he cannot make title 30 H. 6. Trespass 10. 15 H. 7. 2. The King who hath profits of the Land by Out-lawry shall have an Action of Trespass or take goods damage-feasants 35 H. 6. 24. 30 H. 6. Tresp 10. c. Tenant at will shall have an Action of Trespass 21 H. 7. 15. and 11 H. 4. 23. If a man Bayl goods which are taken out of his possession if the Baylee recover in Trespass the same shall be a good Bar to the Baylee 5 H. 4. 2. In a Writ of Waste brought against Tenant for life and assigned the Waste in cutting down of Trees the Defendant pleaded in Bar that the Plaintiff himself cut them and Culpeper the Serjeant of the Plaintiff objected against it that it should be no Plea because the Defendant had not any thing in the Freehold no more then a meer stranger and if a stranger had cut down the same Trees he should be chargeable in Waste Also in this case we should be at a mischief if we should not recover against him for if at another time he bringeth an Action of Trespass against us he shall recover damages against us for the cutting id est for the value of the Trees and yet it was holden by the Court that the same was a good Bar And it was said by the Court that the Plaintiff was not at any mischief in this case for in as much as the Defendant shall have advantage now to discharge himself of Waste against the Plaintiff upon this matter he shall be barred for ever of his Action of Trespass scil to recover the value of the Trees which was the mischief objected by Culpeper But without question he shall have an Action of Trespass Quare clausum fregit for the Entry of the Lessor and for the cutting of the Trees but he shall not recover the value of the Trees because he is not chargeable over but for the special loss which he hath scil for the loss of the Pawnage and of the shadow of the Trees c. See Fitz. Trespass ultimo in the Abridgment And afterwards the same Term Iudgment was given on the principal case for the Plaintiff XXXIV Easter Term 8 Jacobi In the Common-Pleas THe Parishioners of St. Alphage in Canterbury by custom ought to choose the Parish-Clark whom they chose accordingly The Parson of the Parish by coulor of a new Canon made at the Convocation in the _____ year of the King that now is which is not of force to take away any Custom drew the Clark before Doctor Newman Official of the Archbishop of Canterbury to deprive him upon the point of the right of Election and for other causes and upon that it was moved at the Bar to have a Prohibition And upon the hearing of Doctor Newman and himself and his Councel a Prohibition was granted by the whole Court because the party chosen is a meer temporal man and the means of choosing of him scil the custom is also meer temporal so as the Official cannot deprive him but upon occasion the Parishoners might displace him And this Office is like to the Office of a Churchwarden who although they be chosen for two years yet for cause they may displace them as it is holden in 26 H. 8. 5. And although that the execution of the Office concerneth Divine Service yet the Office it self is meer temporal See 3 E. 3. Annuity 30. He who is Clark of a Parish is removable by the Parishioners See 18 E. 3. 27 A gift in tayl was made of the Serjanty or Clarkship of the Church of Lincoln and there adjudged that the Office is temporal and shall not be tryed in the Ecclesiastical Court but in the Kings Court And it is to be known that the deprivation of a man of a temporal Office or place is a temporal thing upon which no Appeal lyeth by the Statute of 25 H. 8. but an Assise as in 4 Eliz. Dyer 209. The President of Magdalen Colledg in Oxford was deprived of the Bishop of Winchester their Visitor He shall not have an Appeal to the Delegates for the Deprivation is temporal and not spiritual but he may have an Assise and therewith agreeth the Book of 8 Ass Siracses Case But if a Dean of a Cathedral Church of the Patronage of the King be deprived before the Commissioners of the King he may appeal to the Delegates within the said Act of 25 H. 8. For a Deanry is a spiritual promotion and not temporal and before
Curia nostra non alibi tractari sicut praedict est cedere poterit attentetis sive attentim faciatis quovismodo By which also it appeareth That Tithes may be discharged and that the matter of discharge ought to be determined by the Common Law and not in the Spirituall Court And it is to be observed That in the said Iudgment nor in the Register any averment is taken of the value of the thing given in satisfaction of the Tithes Also by the Act of Circumspecte agatis made 13 E. 1. It is said S. Rector petat versus parochianos oblationes decimas debitas seu consuetas c. which proves that there are Tithes due in kind and other Tithes due by Custome as a Modus Decimandi c. And yet it is resolved in 19 E. 3. Jurisdiction 28. That the Ordinance of Circumspecte agatis is not a Statute and that the Prelates made the same and yet then the Prelates acknowledged That there were Tithes due by Custome which is a Modus Decimandi By which it appeareth also That Tithes by Custome may be altered into another thing So where a man grants a parcel of his Mannor to a Parson in Fee to be quit of Tithes and makes an Indenture and the Parson with the assent of the Ordinary without the Patron grants to him that he shall be quit of Tithes of his Mannor for that parcell of Land Afterwards if he or his Assignee be sued in the Spirituall Court for Tithes of his Mannor he or his Assignee shall have a Prohibition upon that Deed. And if that Deed was made before time of memory and he hath so continued to be quit of Tithes he shall have a Prohibition upon that Deed if he be sued for the Tithes of that Mannor or of any parcell of the same upon that matter shewed See 8 E. 4. 14. F. N. B. 41. g. vi 3. E. 3. 17. 16 E. 3. t. Annuity 24. 40 E. 3. 3. b. and F. N. B. 152. And therefore if the Lord of a Mannor hath alwaies holden his Mannor discharged of tithes and the Parson had before time of memory or in ancient times divers Lands in the same Parish of the Gift of the Lord of which the Parson is seised at this day in Fee in respect of which the Parson nor any of his Predecessors ever had received any tithes of the said Mannor If the Parson now sueth for tithes of the Mannor the Owner of the Mannor may shew that speciall matter and that the Parson and his Successors time out of mind have holden those Lands c. of the Gift of one who was Lord of the said Mannor in full satisfaction of the tithes of the said Mannor And the proof that the Lord of the Mannor gave the Lands that tithes should never be paid at this day is good evidence to prove the surmise of the Prohibition And so of the like and 19 E. 3. t. Jurisdiction 28. it is adjudged That Title of Prescription shall be determined in the Kings Court And therefore a Modus Decimandi which accrueth by Custome and Prescription in the Kings Court And it appeareth by the Statute of 6 H. 4. cap. 6. That the Pope by his Bulls discharged divers from payment of tithes against which the Act of Parliament was made and by the Statute of 31 H. 8. cap. 13. That the Possessions of Religious persons given to the King were discharged of payment of tithes in certain Cases and by the Statute of 32 H. 8. cap. 7. it is provided That all and singular persons shall divide set out yeild and pay all and singular tithes and Offerings aforesaid according to the lawfull customes and usages of the Parishes and places where such tithes or Duties shall come or immediatly arise or be due Provided alwaies and be it enacted That no person or persons shall be sued or otherwise compelled to pay any manner of tithes for any Mannors Lands Tenements or Hereditaments which by the Laws or Statutes of this Realm are discharged or not chargable with the payment of any such tithes And the Statute of 2 E. 6. cap. 13. Enacts That every of the Kings Subjects shall from henceforth justifie and truly without fraud or guile divide set out c. all manner of their prediall tithes in their proper kind as they will rise and happen in such manner and form as hath been of right yeilded and paid within forty years next before the making of this Act or of Right or Custome ought to be paid So as it appeareth by this that tithe is due of Right and by Custom And also in the same Act there is a Proviso in these words Provided alwaies and be it enacted That no person shall be sued or otherwise compelled to yeild give or pay any manner of tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledge or Prescription are not chargable with the payment of any such tithes or that he discharged by any composition reall so as it appeareth by that Act that one may be discharged from the payment of tithes five manner of waies 1. By the Law of the Realm that is the Common Law As Tithes shall not be paid of Coals Quarries Brick Tiles c. F. N. B 53. and Register 54 Nor of the after Pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2. By the Statutes of the Realm As by the Statute of 31 H. 8. cap. 13. the Statute of 45 E. 3. c. 3. By Priviledge as those of S. Johns of Jerusalem in England The Cistertians Temptors c. as it appeareth by 10 H. 7. 277. Dyer 4. By Prescription As by Modus Decimandi or an annuall Recompence in satisfaction of them as appeareth before by the Authorities aforesaid 5. By reall Composition as appeareth by the said Writ cited out of the Register And so you have one or two examples for many others which may be added of these five manners of discharges of Tithes And by them all it appeareth That a man may be discharged of the payment of Tithes as before is said So as now it apparently appeareth by the Laws of England both Ancient and Modern That a Lay-man ought prescribe in modo Decimandi but not in non Decimando and that in effect agrees with the Opinion of Thomas Aquinas in his Secunda secundae Quaest 86. ar ultimo For there he saith Quod in veteri lege praeceptum de solutione Decimarum partim erat morali inditum ratione naturali quae dictat Quod iis Qui Divino Cultui ministrant ad salutem totius populi necessaria victui debent ministr juxta illud 1 Cor. 9. Quis militat c. Who goeth to War at his own charges c. Partim autem erat judiciale ex Divina institutione robur habens scil Quantum ad determinationem certae partis And all that
the Feoffee and another is not any new thing but the pernancy of the old profits of the Land which well may be limited to the Feoffee and another joyntly But if the use had been onely limited to the Feoffee and his Heirs there because there is not any limitation to another person nec in praesenti nec in futuro he shall be in by force of the Feoffment And it was resolved That Ioynt-tenants might be seised to an use although that they come to it at several times as if a man maketh a Feoffment in Fee to the use of himself and to such a woman which he shall after marry for term of their lives or in tayl or in fee in this case if after he marryeth a Wife she shall take joyntly with him although that they take the use at several times for they derive the use out of the same fountain and Freehold scil the Feoffment See 17 Eliz. Dyer 340. So if a Disseisin be had to the use of two and one of them agreeth at one time and the other at another time they shall be Ioynt-tenants but otherwise it is of Estates which pass by the common Law and therefore if a Grant be made by deed to one man for term of life the Remainder to the right Heirs of A. and B. in Fee and A. hath issue and dyeth and afterwards B. hath issue and dyeth and then the Tenant for life dyeth in that case the Heirs of A. and B. are not Ioynt-tenants nor shall joyn in a Scire facias to execute the Fine 24 E. 3. Joynder in Action 10. because that although the remainder be limited by one Fine and by joynt words yet because that by the death of A. the Remainder as unto the moyety vested in his Heir and by the death of B. the other moyety vested in his Heir at several times they cannot be Ioynt tenants But in the case of a use the Husband taketh all the use in the mean time and when he marryeth the Wife takes it by force of the Feoffment and the limitation of the use joyntly with him for there is not any fraction and several vesting by parcels as in the other case and such is the difference See 18 E. 3. 28. And upon the whole matter it was resolved That because in the principal case the Father and Son were Ioynt-tenants by the original purchase that the Son having the Land by Survivor should not be in Ward and accordingly it was so decreed XXIV Pasc 39 Eliz. Rot. 233. In the Kings-Bench Collins and Hardings Case THe Case between Collins and Harding was A man seised of Lands in Fee and also of Lands by Copy of Court Roll in Fee according to the Custom of the Mannor made one entire Demise of the Lands in Fee and of the Lands holden by Copy according to the Custom to Harding for years rendering one entire Rent and afterwards the Lessor surrendered the Copyhold Land to the use of Collins and his Heirs and at another time granted by Deed the Reversion of the Freehold Lands to Collins in Fee and Harding attorned and afterwards for the Rent behinde Collins brought an Action of Debt for the whole Rent And it was objected That the reservation of the Rent was an entire contract and by the Act of the Lessee the same cannot be apportioned and therefore if one demiseth three Acres rendering 3 s. Rent and afterwards bargaineth and selleth by Deed indented and inrolled the Reversion of one Acre the whole Rent is gone because that the Contract is entire and cannot be severed by the Act of the Lessor Also the Lessee by that shall be subject to two Fealties where he was subject but to one before As to these points it was answered and resolved That the Contract was not entire but that the same by the Act of the Lessor and the assent of the Lessee might be divided and severed for the Rent is incident to the Reversion and the Reversion is severable and by consequence the Rent also for accessorium sequitur naturam sui principalis and that cannot be severed or divided by the assent of the Lessee or express attornment or implyed by force of an Act of Parliament to which every one is a party as by force of the Statute of Inrolments or of Vses c. And as to the two Fealties to that the Lessee shall be subject although that the Rent shall be extinct for Fealty is by necessity of Law incident to the Reversion and to every part of it but the Rent shall be divided pro rata portionis and so it was adjudged And it was also adjudged That although Collins cometh to the Reversion by several Conveyances and at several times yet he might bring an Action of Debt for the whole Rent Hill 43 Eliz. Rot. 243. West and Lassels Case A man made a Lease for years of certain Lands and afterwards deviseth the Reversion of two parts to one he shall have two parts of the Rent and he may have an Action of Debt for the same and have Iudgment to recover Hill 42 Eliz. Rot. 108. in the Common-Pleas Ewer and Moyls Case The Devisee of the Reversion of part shall avow for part of the Rent and such Avowry shall be good and maintainable Note well these Cases and Iudgments for they are given upon great reason and consideration for otherwise great inconvenience would ensue if by severance of part of the Reversion the entire Rent should be lost and the opinion reported by Serjeant Bendloes in Hill 6 and 7 E. 6. to the contrary nihil valet scil That the Rent in such case shall be lost because that no contract can be apportioned which is not Law For 1. A Rent reserved upon a Lease for years is more then a Contract for it is a Rent-service 2. It is incident to the Reversion which is severable 3. Vpon recovery of part in Waste or upon entry in part for a forfeiture or upon surrender of part the Rent is apportionable 25. Note It was adjudged 19 Eliz. in the Kings-Bench That where one obtained a Prohibition upon Prescription de Modo Decimandi by payment of a certain sum of mony at a certain day upon which Issue was taken and the Iury found the Modus Decimandi by payment of the said sum but that it had been payd at another day and the Case was well debated and at the last it was resolved That no Consultation should be granted for although that the day of payment be mistaken yet it appeareth to the Court that no Tythes in kinde were due for which the suit was in the spiritual Court and the Tryal of the Custom de Modo Decimandi belongeth to the Common Law and a Consultation shall not be granted where the Spiritual Court hath not Iurisdiction of the Cause Tanfield chief Baron hath the Report of this Case XXV Mich. 7 Jacobi Regis IN an Ejectione Firmae the Writ and Declaration were of two parts of
Lease be made to one for the lives of J. S. and J. N. there the Freehold doth not determine by the death of one of them for the reasons and causes given in the Case of Brudnel in the fifth part of my Reports fol. 9 Which Case was affirmed to be good Law by the whole Court XXXIII Easter Term anno 8 Jacobi In the Common-Pleas Heydon and Smiths Case RIchard Heydon brought an Action of Trespass against Michael Smith and others of breaking of his Close called the Moor in Ugley in the County of Essex the 25 day of June in the fifth year of the King quendam arborem suum ad valentiam 40 s. ibidem nuper crescen succiderunt The Defendants said that the Close is and at the time of the Trespass was the Freehold of Sir John Leventhrop Knight c. and that the said Oak was a Timber Tree of the growth of thirty years and more and justifies the cutting down of the Tree by his commandment The Plaintiff replyeth and saith That the said Close and a House and 28 Acres of Land in Ugley are Copyhold and parcel of the said Mannor of Ugley c. of which Mannor Edward Leventhrop Esquire Father of the said Sir John Leventhrop was seised 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 custom of the said Mannor and that within the said Mannor there is such a custom Quod quilibet tenens Customar ejusdem Manerii sibi haeredibus suis ad voluntatem Domini c. a toto tempore supradicto usus fuit consuevit ad ejus libitum amputare ramos omnimodum arborum called Pollingers or Husbords super terris tenem suis Customar crescen pro ligno combustibili ad like libitum suum applicand in praedicto Messuagio comburend and also to cut down and take at their pleasure all manner of Trees called Pollengers or Husbords and all other Timber trees super ejusdem Custumariis suis crescen for the reparation of their Houses built upon the said Lands and customary Tenements and also for Ploughbote and Cartbote and that all Trees called Pollengers or Husbords and all other trees at the time of the Trespass aforesaid or hitherto growing upon the aforesaid Lands and Tenements customary of the said Richard Heydon were not sufficient nor did serve for the necessary uses aforesaid And that the said Richard Heydon from the time of the said Grant made unto him had maintained and preserved all trees c. growing upon the said Lands and Tenements to him granted And that after the death of the said Edward Leventhrop the said Mannor descended to the said Sir John Leventhorp and that at the time of the Trespass the aforesaid Messuage of the said Richard Heydon was in decay egebat necessariis reparationibus in Maremio ejusdem Vpon which the Defendant did demur in Law And this Case was oftentimes argued at the Bar and now this Term it was argued at the Bench by the Iustices And in this case these points were resolved 1. That the first part of the Custom was absurd and repugnant scil Quod quilibet tenens Customarii ejusdem Manerii habens tenens aliqua terras seu tenementa Custom c. usus fuit amputare ramos omnimodum arborum vocat Pollingers c. pro ligno combustabili c. in praedicto Messuagio comburend which ought to be in the Messuage of the Plaintiff for no other Messuage is mentioned before which is absurd and repugnant That every customary Tenant should burn his Fuel in the Plaintiffs house But that Branch of the Custom doth not extend unto this case for the last part of the custom which concerneth the cuting down of the Trees concerns the point in question and so the first part of the custom is not material It was objected That the pleading that the Messuage of the Plaintiff was in decay egebat necessariis reparationibus in maremio ejusdem was too general for the Plaintiff ought to have shewed in particular in what the Messuage was in decay as the Book is in 10 E. 4. 3. He who justifieth for Housebote c. ought to shew that the House hath cause to be repaired c. To which it was answered by Coke chief Iustice That the said Book proved the pleading in the case at Bar was certain enough scil Quod Messuagium praed egebat necessariis reparationibus in maremio without shewing the precise certainty and therewith agrees 7 H. 6. 38. and 34 H. 6. 17. 2. It was also answered and resolved That in this case without question it needs not to alledg more certainty for here the Copyholder according to the custom doth not take it but the Lord of the Mannor doth cut down the Tree and carryeth it away where the rest was not sufficient and so preventeth the Copyholder of his benefit and therefore he needeth not to shew any decay at all but onely for increasing of the damages for the Lord doth the wrong when he cutteth down the Tree which should serve for reparations when need should be 3. It was resolved That of common Right as a thing incident to the Grant the Copyholder may take Housebote Hedgbote and Plowbote upon his Copyhold Quia concesso uno conceduntur omnia sine quibus id consistere non potest Et quando aliquis aliquid concedit concedere videtur id sine quo res ipsa esse non potest and therewith agreeth 9 H. 4. Waste 59. But the same may be restrained by custom scil That the Copyholder shall not take it unless by assignment of the Lord or his Bayliff c. 4. It was resolved That the Lord cannot take all the Timber Trees but he ought to leave sufficient for the Reparation of the Customary houses and for Ploughbote c. for otherwise great Depopulation will follow scil Ruine of the Houses and decay of Tillage and Husbandry And it is to be understood That Bote being an ancient Saxon word hath two significations the one compensatio criminis as Frithbote which is as much as to say to be discharged from giving amends for the breach of the peace Manbote to be discharged of amends for the death of man And secondly in the latter signification scil for Reparation as was Bridgbote Burghbote Castlebote Parkbote c. scil Reparation of a Bridg of a Borough of a Castle of a Park c. And it is to be known that Bote and Estovers are all one Estovers are derived of this French word Estouer i. e. fovere i. e. to keep warm to cherish to sustain to defend And there are four kinds of Estovers scil ardendi arandi construendi claudendi scil Firebote Housebote Ploughbote and Hedgbote 5. It was resolved That the Copyholder shall have a general Action of Trespass against the Lord Quare clausum fregit arborem
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
Trees and Clay c. which he had not but as things annexed to the Land and therefore he could not have them when he had departed with his whole interest nor he could not take them either for Reparations or otherwise But when Tenant for life Leaseth for years except the Timber Trees the same remaineth yet annexed to his Freehold and he may command the Lessee to take them for necessary Reparations of the Houses And in the said case of Saunders a Iudgment is cited between Foster and Miles Plaintiffs and Spencer and Bourd Defendants That where Lessee for years assigns over his term except the Trees that Waste in such case shal be brought against the Assignee but in this case without question Waste lieth against the Tenant for life and so there is a difference c. XXVIII Mich. Term 7 Jacobi Regis In the Court of Wards Hulmes Case THe King in the right of his Dutchy of Lancaster Lord Richard Hulm seised of the Mannor of Male in the County of Lancaster holden of the King as of his Dutchy by Knights service Mesne and Robert Male seised of Lands in Male holden of the Mesn as of his said Mannor by Knights service Tenant Richard Hulm dyed after whose death 31 Hen. the eight it was found that he dyed seised of the said Menalty and that the same descended to Edward his Son and Heir within age and found the Tenure aforesaid c. And during the time that he was within age Robert Male the Tenant dyed after which in anno 35 H. 8. it was found by Office That Robert Male dyed seised of the said Tenancy peravail and that the same descended to Richard his Son and Heir within age and that the said Tenancy was holden of the King as of his said Dutchy by Knights service whereas in truth the same was holden of Edward Hulm then in Ward of the King as of his Menalty for which the King seised the Ward of the Heir of the Tenant And afterwards anno quarto Jacobi Regis that now is after the death of Richard Male who was lineal Heir of the said Robert Male by another Office it was found That the said Richard dyed seised of the said Tenancy and held the same of the King as of his Dutchy by Knights service his Heir within age whereupon Richard Hulm Cosin and Heir of the said Richard Hulm had preferred a Bill to be admitted to his Traverse of the said Office found in quarto Jacobi Regis And the Question was Whether the Office found in 35 H. 8. be any estoppel to the said Hulm to Traverse the said last Office or if that the said Hulm should be driven first to Traverse the Office of 35 H. 8. And it was objected That he ought first to Traverse the Office of 35 H. 8. as in the Case of 26 E. 3. 65. That if two Fines be levyed of Lands in ancient Demesn the Lord of whom the Land is holden ought to have a Writ of Deceit to reverse the first Fine and in that the second Fine shall not be a Bar And that the first Office shall stand as long as the same remains in force To which it was answered and resolved by the two Chief Iustices and the Chief Baron and the Court of Wards That the finding of an Office is not any estoppel for that is but an enquest of Office and the party grieved shall have a Traverse to it as it hath been confessed and therefore without question the same is no estoppel But when an Office is found falsly that Land is holden of the King by Knights service in capite or of the King himself in Socage if the Heir sueth a general Livery now it is holden in 46 E. 3. 12. by Mowbray and Persey that he shall not after add that the Land is not holden of the King but that is not any estoppel to the Heir himself who sueth the Livery and shall not conclude his Heir for so saith Mowbray himself expresly in 44 Assis pl. 35. That an Estoppel by suing of Livery shall estop onely himself the Heir during his life And in 1 H. 4. 6. b. there the case is put of express confession and suing of Livery by the issue in tayl upon a false Office and there it is holden that the Iurors upon a new Diem clausit extremum after the death of such special Heir are at large according to their conscience to finde that the Land is not holden c. for they are sworn ad veritatem dicendum and their finding is called veredictum quasi dictum veritatis which reason also shall serve when the Heir in Fee-simple sueth Livery upon a false Office and the Iurors after his death ought to finde according to the truth So it is said 33 H. 6. 7. by Laicon that if two sisters be found Heirs whereof the one is a Bastard if they joyn in a Suit of Livery she which joyneth with the Bastard in the Livery shall not alledg Bastardy in the other but there is no Book that saith that the Estoppel shall endure longer then during his life and when Livery is sued by a special Heir the force and effect of the Livery is executed and determined by his death and by that the Estoppel is expired with the death of the Heir but that is to be intended of a general Livery but a special Livery shall not conclude one But as it is expressed the words of a general Livery are When the Heir is found of full age Rex Escheatori c. Scias quod cepimus homigium I. filii haeredis B. defuncti de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus c. And when the Heir was in Ward at his full age the Writ of Livery shall say Rex c. Quia I. filius haeres B. defuncti qui de nobis tenuit in capite aetatem suam coram te sufficienter probavit c. Ceperimus homagium ipsius I. de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus ut supra c. Which Writ is the Suit of the Heir and therefore although that all the words of the Writ are the words of the King as all the Writs of the King are and although that the Livery be general de omnibus terris tenementis de quibus B. pater I. tenuit de nobis in capite die quo obiit without direct affirmation that any Mannor in particular is holden in capite and notwithstanding that the same is not at the prosecution of the Kings Writ and no Iudgment upon it yet because the general Livery is founded upon the Office and by the Office it was found That divers Lands or