this was done upon the Motion of Haughton Sergeant Mich. 7 Jac. Regis In the Court of Wards Samme's Case John Samme's being seized of Grany Mead by Copy of Court-Roll of the Mannor of Tellesham the Great of which Sir Thomas Beckingham c. and held the same of the King by Knights Service in capite Sir Thomas by Deed indented dated 22 Decemb. 1 Jacobi between him of the one part and John Sammes and George Sammes Son and Heir of John on the other part did bargain sell enfeoffe c. to John Sammes the said Mead callâ—d Grany Mead to hold to the said John Sammes and George Sams and their Heirs and Assigns to the onely use of the said John and George and their Heirs and Assigns for ever and Sir Thomas by the same Indenture covenants to make further Assurance to the said John and George c. and Livery and Seizin was deliver'd accordingly John Sammes the Father dyeth George Sammes his Son and Heir within Age the Question was Whether Geo. Sammes should be in Ward to the King or no And in this Case three Points were Resolved 1. Forasmuch as George was not named in the Premisses he cannot take by the Habendum and the Livery according to the Indenture gives nothing to George it being to him as void but though the Feoffment be good onely to John and his Heirs yet the use limited to John and George and their Heirs is good 2. If the Estate had been conveyed to John and his Heirs by the Release c. as it may well be to a Tenant by Copy of Court Roll the use limited to them is good 3. But the third was of greater doubt If in this Case the Father and Son were Joint-Tenants or Tenants in common And it was Resolved That they were Joint-Tenants and that the Son in the Case at Bar should have the said Grange by the Survivor for if at the Common-Law A. had been enfeoffed to the use of him B. and their Heirs though that he was onely seized of the Land the use was jointly to A. and B. for a use shall not be suspended or extinct by a sole Seizin or joint Seizin of the Land and therefore if A. and B. be enfeoffed to the use of A. and his Heirs And A. dyeth the entire use shall descend to his Heirs as appears 13 H. 7. 6. in Stoner's Case and by the Statute of 27 H. 8. cap. 10. Of Uses And when it was said that the Estate of the Land which the Father hath in it as to the moiety of the use which he himself hath shall not be devested out of him To that it was Answered and Resolved That that shall well be for if a man make a Feoffment in Fee to one to the use of him and the Heirs of his body in this Case for the benefit of the Issue the Statute of Uses devests the Estate vested in him by Common-Law and executes the same in himself by force of the Statute And it is to be known that an Use of Land which is but a pernency of Profits is no new thing but part of that which the Owner of the Land had and therefore if Tenant in Borough-English or a man seized on the part of his Mother make a Feoffment to another without consideration the younger Son in the one case and the Heir on the part of the Mother on the other shall have the use as they should have the Land it self if no Feoffment had been made as it is holden 5 E. 4. 7. See 4 and 5 P. and M. Dyer 163. See Fenwick and Milford's Case Trin. 31 Eliz. So in 28 H. 8. Dyer 11. the Lord Rosses Case 13 H. 7. 6. by Butler So in the Case at Bar the Use limited to the Feoffee and another is not any new thing but the pernancy of the old profits of the Land which may well be limited to the Feoffee and another jointly But if the use had been onely limited to the Feoffee and his Heirs there because there is not any Limitation to anothers person nec in praesenti nec in futuro he shall be in by force of the Feoffment And it was Resolved That Joint-Tenants might be seized to an use though they come to it at several times as if a man make 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 tail or in fee in this Case if he marry a Wife after she shall take jointly with him though they take the use at several times See 17 Eliz. Dyer 340. but otherwise it is of Estates which pass by the Common-Law as 24 Ed. 3. Joynder in Action 10. If a Grant be made by Deed to one man for 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 Tenant for Life dyeth in that case the Heirs of A. and B. are not Joynt-Tenants because by the death of A. the remainder as to one moiety vested in his Heir and by the death of B. the other moiety vested in his Heir at several times And upon the whole matter it was Resolved That because in the principal Use the Father and Son were Joint-Tenants by the Original Purchase that the Sonne having the Land by Survivor should not be in Ward and accordingly it was so Decreed Pasch 39 Eliz. Rot. 233. In the Kings-Bench Collins and Harding's Case The Case was A man seized of Lands in Fee and also of Lands by Copy of Court-Roll in Fee according to the Custom of the Mannor made one intire Demise of the Lands in Fee and of the Lands holden by Copy according to the Custom to Harding for years rendring one intire Rent and afterwards the Lessor surrendred the Copy-hold Land to the use of Collins and his Heirs and at another time granted by Deed the Reversion of the Free-hold Lands to Collins in Fee and Harding attorned and afterwards for the Rent behind 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 apportionâ—d and therefore if one dâ—mise 3 Acres rendring 3 s. Rent and afterwards bargains and sells the reversion 〈◊〉 one Acre the whole Rent is gone because the Contract is entire c. Also the Lessee by that shall be subject to two Fealâ—â—es where he was subject but to one before To these Points it was answered and Resolved That the Contract was not entire but that the same by Act of the Lessor and Consent 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 suâ— principâ—lis And as to the two Fealties to that the Lessee shall be subject though the Rent
lawfully endowed and paid his first Fruits and Tenths Resolved by all the Court that it shall be presumed that the Vicaridge was lawfully endowed And that it is a dangerous President to examine Originalls of Impropriations and Endowments of Vicaridges for that they may perish And so it was decreed for the Plaintiff Hill 4. Jac. Regis Bedle and Beard Anno 31. Ed. 1. The King being seized of the Mannor of Kâ—mbolton to which the Advowson of the said Church was appendant by Letters Patents granted the said Mannor wish the Appâ—â—tenances to Humphry de Bohun Earl of Hereford in tayl generall Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson then full of an Incumbent to the Prior of Stonely and his Successors And at next avoydance they held In proprios usus Upon this Appropriation Concurrentibus his quae in jure requiruntur the Prior and his Successors held the same till the dissolution of the Monastery 27. H. 8. The said Mannor descended to Edward Duke of Buckingham as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was attaint of High Treason 14 H. 8. The King granted the said Mannor c. with all Advousons appendant c. to Richard Wingfield and his Heirs Males 16 H. 8. It was Enacted that the said Duke forfeit all Mannors c. Advousons c. which he had c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton as impropriate in Fee which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defendant got a Presentation of the Queen by Lapse pretending the said Church was not lawfully impropriate to the Prior. 1. For that Humphry who granted to the Prior had nothing in it nothing passing to his Ancestor by these words Manâ—rium cum pertinentiis 2. Or for that having no more but an Estate Tayl by his death his Grant was void But Resolved by the Lord Chancellor Ellesmere with the principal Judges and upon consideration of Presidents that the Plaintiff shall enjoy the Rectory for though by any thing which can now be shewn the Impropriation is defective yet it shall be now intended in regard of the antient and continual possession that there was a lawfull grant of the King to the said Humphry who granted in Fee so that he might lawfully grant it to the said Priory Omnia pâ—â—sumitur Solâ—mniter esse acta And all shall be presumed to be done which might make the antient Impropriation good And antient Grants and Acts shall not be drawn in question though they cannot be shewn for Tempus edâ—x rerum Letters Patents and Writings may consume be lost or imbezilled And therefore the Church was allowed to be rightfully impropriate and the rather in regard of the antient and long possession of the Owners of the said Rectory Mich. 4. Jac. Regis Case of Forfeiture by Treason Hill 43 Eliz. A Case was moved to all the Justices Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself and his Wife in Tayl. And after the said Statute the Husband was attaint of High Treason 31 H. 8. and dyed The Wife continued in possession and dyed their Issue enter and die and this descends to his Issue and all this found by Office The Question was if the Issue in Tayl or the King shall have the Land 1. And it was objected that the antient Estate Tayl cannot be forfeited because it was discontinued and such right of Action cannot be forfeited As was agreed in the Marquess of Winchesters Case 2. The Feoffor himself in this Case had not any right to the antient Estate Tayl it being extinguished by his Feoffment and therefore by his Attaint could not forfeit what he had not 3. The Issue in Tayl in remitted to that antient right which cannot be forfeited And the new Estate Tayl derived under the discontinuance which may be forfeited by the Statute 26 H. 8. cap. 13. is continued and by Act in Law viz. the discent and remitter avoided And the Kings Estate may be divested out of the King by remitter As if Tenant in Tail grant Land to the King c. and the King grant the Land to the Tenant in Tail for life the remainder to his Son and Heirs for life Tenant for life dies the Issue by and in Law is remitted and the Kings Estate is divested out of him This accords with Plow Com. 489. Nicols Case 1. Resolved that in this Case the Issue in Tail is barred for though right of Action cannot be given to the King by the 26 H. 8. yet when Tenant in Tail discontinues his Estate to the use of himself in Tail and after is attaint of Treason now by that Statute he doth not onely forfeit the new Estate in Tail but by this the right of the antient Estate is barred for ever And so note out of the said Statute a diversity between a naked right of Action not forfeitable and an Estate of Inheritance forfeiâ—able coupled with an antient right for which the Forfeiture of the possession is barred by the said Act And iâ— is not like the Case in Plow Com. of Remitter for this is no barre of an antient right Pasch 4 Jac. Regis Case at a Committee aoncerning Bishops At this Parliament held Pasch 4 Jac. Regis It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber that such Bishops as were made after the first day of the Session were not lawful Bishops 1. Admitting them Bishops yet the manner and form of their Seals Stiles Process and Proceeding in their Ecclesiastical Courts were not consonant to Law Because by the Statute 1 Ed. 6. cap. 2. it is provided That thenceforth Bishops should not be Elective but Donative by Letters-Patents of the King And for that at this day all Bishops were made by Election not Donation of the King therefore the saâ—d Bishops are not lawful 2. By the same Act it is provided That all Summons c. and Process in Ecclesiastical Courts shall be made in the King's Name and Stile and their Seals Engraven with the Kings Arms and Certificates made in the Kings Name It was therefore concluded Thâ—t the said Statute being still in force by Consequence all Bishops made after the Act 1 Jac. were not lawful Bishops And the Proceedings being in the Name of the Bishop makes them unlawful Quia non obserâ—ata forma infertur adâ—ullatio actus Upon Consideration had of these Objections by the Kings Commandment it was Resolved by Popham Chief Justice of England â—nd Coke Attorney of the King and after affirmed bâ— the Chief Baron and the other Justices Attendant to â—he Parliament that the said Act of the 1 Ed. 6. cap. 2. is not now in force being repealed annulled and annihlated by three several Acts of Parliament Any whereof being
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
had Issue John his eldest Son and others viz. Christopher Richard c. and being seized of Land in Fee oâ— 100 Marks per annum value his eldest Son being dead and his Grandchild John withâ—n age he gave direction for a Lease to be made of a Faâ—m called Roushal to Christopher during the minority of his Grand-child rendring the antient Rent with power of Revocation and of Lands in Yatesbury to Richard in the same manner and the same time Chrâ—stopher and Richard by the Covin of one Woodruff a Serivener 25 Eliz. drew two Leases to Christopher and Richard for 51 years rendring 4 d. per annum and without any power of Revocation John Shulter the Grandfather being blind with age and Woodruff telling him they were according to his direction And thereupon John Shulter thâ— Grandfather sealed and delivered them And it was resolved by the Lord Ellesmere Chancellor and two Chief Justies That the said Indentures could not bind the said John Shulter because he was blind and the effect was declared to him other than in truth it was Iâ— fully agreed with Mansers Case in the second part of my Reports fol. 4. Mich. 9 Jacobi Regis Sir Anthony Ashley's Case The Case was this Sir James Creyton had bought a pretended Right of and in the Mannor of â—yddy and Millisent and divers oâ—her Lands of which Sir Anthony had long possession Upon which divers Motions were made concerning Fines acknowledged to be staid c. in the Common-Bench and Sir James not prevailing in it entred into a wicked Conspiracy with several other Defendants in the Cause to accuse the said Sir Anthony of some Capital Crimes whereby he should forfeit all his Lands Goods and Chattels which they should share amongst them and in the end Henry Smith formerly a Servant to Sir Anthony was suborned to accuse the said Sir Anthony of the Muâ—ther of William Rice late Husband of Mary Rice one of the Defendants which William was dead 18 years before and Smith was to have 500 l. for his pains to have a place procured him in the Kings Guard in Ordinary a Proteâ—tion also from the King against his Creditors and a General Pardon Of all which Smith would have assurance before he would make any Accusation of the said Sir Anthony Whereupon Articles in Writing were drawn ingrossed and sealed between Sir James Creyton of the one part and John Cantrel Servant to Hunnings by Smith's Consent and to his use on the other part By which Sir Jaâ—es Covenanted that the said Cantrel and his Heirs after the Conviction and Attainder of Sir Anthony shall have a sixth part of his Mannors c. In consideration whereof Cantrel Covenanted that he should procure Witnesses to Convict the Plaintiff of Murther or other Capital Crimes c. Which Articles were sealed 16 of Feb. 7 Jac. And for the performance of the said Articles Sir James gave Bond of 8000 l. to Cantrel Within two dayes after Smith counterfeits himself sick and then pretending to disburthen his Conscience reveales the said Murther and accused himself for poysoning the said William Rice by the said Sir Anthonies Command so that he himself was Principal Upon this Sir James procures Mary Rice the Widow of the said William Rice to prefer a Petition to the King importing the Accusation aforesaid Which Petition the King referred to the Chief Justice of the Kings-Bench who after full Examination certified the King that he found a false Conspiracy to indict Sir Anthony without any just ground and certified also the effect of the Articles Upon which the King by Advice of the Privy-Councel thought the matter fit to be sentenced in the Star-Chamber Which in the same Term upon ordinary proceeding was heard by six dayes And it was objected by the Defendants Councel That the Bill upon the said Conspiracy did not lye and that it would be dangerous to maintain it for it will deter men to prosecute against great Offenders whereby they will pass unpunished And by the Law Conspiracy lyes where a man is indicted and legitimo modo acquietus but here he was never indicted c. But to this it was Answered and Resolved by the Lord Chancellor the two Chief Justices and all the Court That in this Case the Bill was maintainable though the Party accused was not indicted and acquitted before as it was Resolved in this Court Hill 8. Jac. in Poulter's Case Besides be Sir Anthony guilty or no the Defendants are punishable for promising Bribes and Rewards to Smith to accuse the Plaintiff and the Articles to share Sir Aâ—thonies Estate after Attainder And there is a great Indignity offered to the King in assuming to Covenant that the King shall protect or pardon or that any man's Estate may be shared before Attainder And it appeared by many Witnesses that William Rice dyed not of any poysoning but of a horrible Disease got by his dissolute life which with Reverence cannot be spoken And in this Case it was Resolved That if Felony be done and one hath suspition upon probable matter that another is guilty of it he may arrest the party so suspected to bring him to Justice But in this Case three things are to be observed 1. That a Felony be done 2. That he that doth arrest hath suspition upon probable cause 3. That he himself who hath the suspition arrest the party Resolved also That if Felony be done and common fame and noise is that one hath committed it this is good cause for him that knowes of it to arrest the party and with this agrees the Book 2 H. 5. 15 16. 15 H. 7. 5. 20 H. 7. 12. 21 H. 7. 28. 7 Ed. 4. 20. 8 Ed. 4. 27. 11 Ed. 4. 4. 6. 17 Ed. 4. 5. 6. 20 Ed. 4 6. B. 7 H. 4. 25. 27 H. 8. 23. 26 H. 8 9. 7 Eliz. Dy. 226. Hill 9 Jac. Regis In this Term the Attorney and Sollicitor consulted with me if at this day upon Conviction of an Heretick before the Ordinary the Writ de Haeretico combunendo lyeth and it seems to be clear that it doth not for the Reasons and Authorities that I have reported Trin. 9 Jacob before But after they consulting with Fleming Chief Justice Tanfield Chief Baron and Williams and Crook And they upon the Report of Dr. Cosins mentioned in my said Report and some Prâ—sidents in Queen Elizabeth's time they certified the King that the said Writ lyeth but that the most sure way was to convict the Heretick before the High Commissioners Pasch 10 Jac. Regis The Lord Vaux his Case In this Term the Lord Vaux was indicted of a Premunire in the Kings-Bench upon the New Statute for refusing the Oath of Allegeance upon his Arraignment he prayed he might be tryed per Pares But iâ— was Resolved That he shall not for that Magna Charta cap. 29. Nec super cum ibimus nec super eum mittemus nisi per legale judicium parium suorum is onely to be
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
positivi Juris est And he holds that a Portion is due by the Law of Nature which is the Law of God but it pertains to the Law of Man to assign Hane vâ—l illam portionem And saith further That Tythes may be exchanged into Lands Annuity or Rent c. And also that in Italy and other the East-Countries they pay not Tythes but a certain Portion according to the Custom And forasmuch as the Tenth Part is now due Ex Institutione Ecclâ—â—â—ae that is by their Canons and it appears by 25 H. 8. cap. 19. That all Canons c. made against the King's Prerogative c. are void and that Law was but Declaratory for no Statute or Custome of the Realm can be abrogated by any Cannon c. and that well appeareth by 10 H. 7. fol. 17. cap. 18. The second Point which agrees with the Law at this day which was adjudged in the said Record 25 H. 3. is That the Limits and Bounds of Towns and Parishes shall be trayed by the Common-Law and not by the Spirituall Court And in this the Law hath great Reason for thereupon depends the Title of Inheritance of the Layfee whereof the Tythes were demanded for Fines and Recoveries are the common Assurances of Lay-Inheritances and if the Spiritual Court should try the Bounds of Towns if they determine that my Land lyeth in another Town than is contained in my Fine Recovery or other Assurance I am in danger to lose my Inheritance and therewith agrees 39 Ed. 3. 29. 5 H. 5. 10. 32 Ed. 4. Consultation 3 Ed. 4. 14. 19 H. 6. 20. 50 Ed. 3. 20. and many other Presidents to this day And Note There is a Rule in Law that when the Right of Tythes shall be tryed in the Spiritual Court and the Spiritual Court hath Jurisdiction of the same that our Courts shall be oâ—sted of the Jurisdiction 35 H. 6. 47. 38 H. 6. 21. 2 Ed. 4. 15. 22 Ed. 4. 13. 38 Ed. 3. 36. 14 H. 7. 17. 13 H. 2. Jurisâ— 19 and when not ousted 12 H. 2. Jurisdiction 17. 13 â— 2. ibid. 19. 7 H. 4. 34. 14 H. 4. 17. 38 Ed. 3. 56. 42 Ed 3. 12. And the Causes why the Judges of the Common-Law would not permit the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Court is because that if the Recompence which is to be given to the Parson in satisfaction of his Tythes doth not amount to the value of his Tythes in kind they would overthrow the same And that appears by Linwood among the Constitutions Simonis Mepham tit de Decimis cap. Quoniam propter fol. 139. b. verbo Consuetudines And that is the true Reason and therefore a Prohibition lyes and therewith agrees 8 Ed. 4. 14. and the other Books aforesaid and infinite Presidents See 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Justices Mich. 6 Jacobi Regis In the Exchequer Baron and Boyse Case In the Case between Baron and Boys in Information upon the Stat. 5 Ed. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer that the Defendant had ingrossed Apples against the said Act. The Barons held clearly that Apples were not within the Act and gave Judgment against the Informer upon the matter apparent to them and caused the same to be entred in the Margin of the Record where the Judgment was given The Informer brought a Writ of Errour in the Exchequer Chamber and the onely Question was Whether Apples were within the said Act. The Letter of which is viz. That whatsoever person c. shall ingross or get into his or her hands by buyiâ—â— c. any Corn growing or other Corn or Grain Butter Cheese Fish or other dead Victuall c. to sell the same again shall be accepted c. an unlawsul Ingrosser And though the Sâ—at 2 Ed. 6. 6. 15. numbreth Butchers Brewers Bakers Cooks Coster Mongers and Fruiterers as Victuallers yet Apples are not dead Victuals within the 5 Ed. 6. there being no Provisoe for Coster-mongers and Fruiterers in the said Act as there are for Buyers and Sellers of Corn and other Victualâ— Also ever since the Act they have bought Apples by Ingross and sold them again and yet no Information was ever before this for the same being for Delicacy more than necessary Food But the Stat. 5 Ed. 6. is intended of things necessary for sustenance of man where the Statute of 2 Edward the 6. 15. made against Conspiracies to enhance the Prices was done by express words to extend it to things which are more of pleasure than profit But this was not resolved by the Justices because the Information was conceived upon that Branch of the Statute concerning Ingrossers Hill 27 Eliz. in Chancery Hill 27 Eliz. In Chancery the Case was thus Ninian Menvil seized of certain Lands in Fee took a Wife and levyed a Fine of the said Lands with Proclamations and afterwards was indicted and outlawed of High-Treason and dyed The Conusees convey the Land to the Queen who is now seized The five years pass after the Husband's death the Daughters and Heirs of the said Ninian in a Writ of Errour in the Kings-Bench reverse the said Attainder M. 26 and 27 Eliz. and thereupon the Wife sues to the Queen by Petition containing all the special matter Which Petition being indorsed by the Queen Fait droit aux Parties c. the same was sent into Chancery as the manner is And in this Case divers Objections were made against the Demandant 1. That the Fine with Proclamations should bar the Wife of Dower and the Attainder of her Husband should not help her for as long as that remained in force the same was a Bar also of her Dower But admit the Attainder of the Husband shall avail the Wife the same being reversed by a Writ of Errour and so in Judgment of Law as if it had never been and against which a man might plead there is no such Record agreeing with the Book 4 H. 7. 11. and the Case in 4 H. 7. 10. b. is A. seized of Land in Fee was Attaint of Hâ—gh-Treason The King grants the Land to B. and afterwards A. committed Trespass upon the Land and after by Paâ—l A. was restored and the Attainder void This shall be as auciplable and ample to A. as if no Attainder had been Afterwards B. brinâ—s Trespass for the Trespass Mesne and it was adjudged 10 H. 7. f. 22. b. that the Action of Trespass was not maintainable because the Attainder was annulled ab initio 2. It was objected That the Wife could not have a Petition because there was not any Officâ— by which her Title of Dower was sound viz. her Marriage her Husbands Seizin and Death for it was said that though he was marryed yet if her Husband was not seized after the Age that she is Dowable she shall not have Dower And the Title of him that sueth by Petition ought to be
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-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-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-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