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
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
all the mean profits from the time of the erroneous Iudgment given until the Iudgment in the Writ of Error so as the Reversal hath a Retrospect to the first Iudgment as if no Iudgment had been given And therefore the Case in 4 H. 7. 10. b. the case is A. seised of Land in Fee was attainted of High Treason and the King granted the Land to B. and afterwards A. committed Trespass upon the Land and afterwards by Parliament A. was restored and the Attainder made voyd as if no Act had been and shall be as available and ample to A. as if no Attainder had been and afterwards B. bringeth Trespass for the Trespass Mesue and it was adjudged in 10 H. 7. fo 22. b. That the Action of Trespass was not maintainable because that the Attainder was disaffirmed and annulled ab initio And in 4 H. 7. 10. it is holden That after a Iudgment reversed in a Writ of Error he who recovered the Land by Erroneous Iudgment shall not have an Action of Trespass for a Trespass Mean which was said was all one with the principal case in 4 H. 7. 10. and divers other Cases were put upon the same ground It was secondly objected That the Wife could not have a Petition because there was not any Office by which her title of Dower was found scil her marriage the seisin of her Husband and death for it was said that although she was marryed yet if her Husband was not seised after the age that she is Dowable she shall not have Dower as if a man seised of Land in Fee taketh to Wife a woman of eight years and afterwards before her age of nine years the Husband alieneth the Lands in Fee and afterwards the woman attaineth to the age of nine years and the Husband dyeth it was said that the woman shall not be endowed And that the title of him who sueth by Petition ought to be found by Office appeareth by the Books in 11 H. 4. 52. 29 Ass 31. 30 Ass 28. 46 E. 3. bre 618. 9 H. 7. 24. c. As to the first Objection it was resolved That the Wife should be endowed and that the Fine with proclamations was not a bar unto her and yet it was resolved that the Act of 4 H. 7. cap. 24. shall bar a woman of her Dower by a Fine levyed by her Husband with proclamations if the woman doth not bring her Writ of Dower within five years after the death of her Husband as it was adjudged Hill 4 H. 8. Rot. 344. in the Common Pleas and 5 Eliz. Dyer 224. For by the Act the right and title of a Feme Covert is saved so that she take her action within 5. years after she become uncovert c. but it was resolved That the wife was not to be ayded by that saving for in respect of the said Attainder of her Husband of Treason she had not any right of Dower at the time of the death of her Husband nor can she after the death of her Husband bring an Action or prosecute an Action to recover her Dower according to the direction and saving of the said Act But it was resolved That the Wife was to be ayded by another former Saving in the same Act viz. And saving to all other persons scil who were not parties to the Fine such action right title claym and interest in or to the said Lands c. as shall first grow remain descend or come to them after the said Fine ingrossed and proclamations made by force of any Gift in Tail or by any other cause or matter had and made before the said Fine levied so that they take their Actions and pursue their right and Title according to the Law within five years next after such Action Right Claim Title or Interest to them accrued descended fallen or come c. And in this case the Action and right of Dower accrued to the wife after the reversall of the Attainder by reason of a Title of Record before the Fine by reason of the seisin in Fee had and the Marriage made before the Fine levied according to the â—â—â—ention and meaning of the said Act. And as to the said poâ—â—t of Relation It was resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some intent not For Relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same parties to advance a Right or Ut res magis valeat quam pereat But the Law will never make such a construction to advance a wrong which the Law abhorreth Or to defeat Collaterall Acts which are lawfull and principally if they do concern Strangers And this appeareth in this Case scil when an erroneous Iudgment is reversed by a Writ of Error For true it is as it hath been said That as unto the mean Profits the same shall have relation by construction of Law untill the time of the first Iudgment given and that is to favour Iustice and to advance the right of him who hath wrong by the erroneous Iudgment But if any stranger hath done a Trespasse upon the Land in the mean time he who recovereth after the Reversall shall have an Action of Trespasse against the Trespassors and if the Defendant pleadeth that there is no such Record the Plaintiff shall shew the speciall matter and shall maintain his Action so as unto the Trespassors who are wrong Doers the Law shall not make any construction by way of relation ab initio to excuse them for then the Law by a fiction and construction should do wrong to him who recovereth by the first Iudgment And for the better apprehending of the Law on this point it is to know That when any man recovers any possession or seisin of Land in any Action by erroneous Iudgment and afterwards the Iudgment is reversed as is said before and upon that the Plaintiff in the Writ of Error shall have a Writ of Restitution and that Writ recites the first recovery and the reversall of it in the Writ of Error is that the Plaintiff in the Writ of Error shall be restored to his possession and seisin Una cum exitibus thereof from the time of the Iudgment c. Tibi praecipimus quod eadem A. ad plenariam seisinam tenementorum praedict cum pertinentiis sine dilatione restitui facias per sacramentum proborum legalium hominum de Com. suo diligenter inquires ad quantum exitus proficua tenementorum illorum cum pertinentiis a tempore falsi Judicii praedict reddit usque ad Oct. Sanct. Mich. anno c. quo die judcium illud per praefat Justiciar nostros revocat fuit se attingunt juxta verum valorem eorundem eadem exitus proficua de terris catallis praedict B. in baliva tua fieri facias denarios inde praefato A. pro exitibus et proficuis
Ayd and therefore a Tenant in Burgage shall be contributary to it And it is to be observed and so it appeareth in the Register fo 1 2. That in a Writ of Right if the Lands or Tenements are holden by Knights service it is said Quas clamat tenere de te per servitium unius feodi Militis and if the Lands be holden in Socage the Writ is Quis clamat tenere de te per liberum servitium unius libri cumini c. so as Socage Tenure in all Writs is called Liberum servitium And by the Writ of Ayd Fitz. N. B. 82. it is commanded to the Sheriff Quod juste c. facias habere A. rationabile Auxilium de Militibus liberis tenentibus suis in Baliva tua c. so as the same Writ makes a distinction of Knights service by the name of Militibus and of Socage by the name of Liberis tenentibus And in the Register fol. 2. 6. the Writ of Right for a House in London which is holden of the King in Burgage is in these words Rex Majori vel Custodi Vicecom London Praecipimus vobis quod sine dilatione teneatis G. de uno Messuagio c. in London quae clamat tenere de nobis per liberum servitium c. which proves That Tenure in Burgage is a Tenure in Socage But it appeareth by the Books of Avowry 26. and 10 H. 6. so Ancient Demesne 11. it was resolved by all the Iustices in the Exchequer Chamber That no Tenure should pay for a reasonable Ayd to marry the Daughter or to make the Son a Knight but Tenure by Knights service and Tenure by Socage but not Tenure by Grandserjanty nor no other and 13 H. 4. 34. agrees to the Case of Grandserjanty and by the said Books it appeareth that Tenure by Frankalmoign and Tenure by Divine Service shall not pay for they are none of them but Tenure in Burgage is a Tenure in Socage and therefore the said Books prove that such a Tenure shall pay Ayd And I conceive that Tenure by Petit-Serjanty shall pay also Ayd for Litt. lib. 2. cap. 8. fo 36. says That such a Tenure is but Socage in effect but Fitz. N. B. 83. a. avoucheth 13 H. 4. 34. That Tenant by Petit-Serjanty shall not pay Ayd but the Book onely extends to Grand-Serjanty If the Houses in a City or Borough are holden of the King in Burgage and the King grant the Seignories to one and the City or Borough to another to hold of him then those Houses shall not be contributary to Ayd for they are not immediately holden of the King as is required by the Law And I conceive that he who holdeth a Rent of the King by Knights service or in Socage shall pay Ayd for the words of the Act of VVestm 1. cap. 35. are From henceforth of a whole Knights Fee onely be taken 20 s. of 20 l. Land holden in Socage 20 s. and the Mean is said in supposition of Law to hold the Land and it is not reason that the Tenant by his Feoffment before the Statute should prejudice the Lord of his benefit And although it was said that a Tenure in Socage in servitium Socae as Littleton saith and the same cannot be applyed to Houses to that it was answered That the Land upon which the House is built or if the House falleth down may be made arable and be ploughed And a Rent may be holden in Socage and yet it is not subject to be plowed but by a possibility after words escheat to the Lord of the Land See Huntington Polidor Virgill and Hollinsheds Chronicle fol. 35. 15 H. 4. Ayd was levyed by Hen. 7. 1. to marry Mawd his eldest Daughter to the Emperor viz. 3 l. of every Hide of Land c. And see The Grand Customary of Normandy cap. 35. there is a Chapter of Ayds whereof the first is to make the eldest Son of his Lord a Knight and the second to marry his eldest Daughter And see a Statute made in anno 19 H. 7. which begineth thus Item praefati Communes in Parliamento praedicto existentes ex assensu duorum Spiritualium Temporalium in dicto Parliamento similiter existen concesserunt praefato Regi quandà m pecuniae summam in loco duorum rationabilium auxiliorum suae Majestatis de jure debit tam ratione creationis nobilissimi filii sui primogeniti bonae memoriae Domini Arthuri nuper Principis VValliae quam ratione Matrimonii traductionis nobilissimi Principis Margaritae filiae suae primogenit quam etiam multiplicare pro Regni sui perpetua pace tranquillitate c. certis viis modis levand cujus quidem concessionis Tenor c. sequitur in haec verba For as much as the King our Soveraign Lord is rightfully intituled to have two reasonable Ayds according to the Laws of this Land the one for the making Knight the right honorable his first begotten Son Arthur late Prince of VVales deceased and the other for that the marriage of the Right Noble Princess his first begotten Daughter Margaret now marryed to the King of Scots and also that his Highness hath born great and inestimable charges for the defence of the Realm c. considering the premisses And if the same Ayds should be levyed and had by reason of their Tenures according to the ancient Laws of the Land should be to them doubtful and uncertain and great unquietness for the search and not knowledg of their several Tenures and their Lands chargeable to the same have made humble Petition unto his Highness graciously to accept and take of them the sum of 40000 l. as well in recompence and satisfaction of the said two Ayds as for the said great and inestimable charges c. as is aforesaid The King to eschew and avoyd the great vexation troubles and unquietness which to them should have ensued if the said Ayds were levyed after the ancient Laws and for the good and acceptable services of the Nobles of this Realm and other his faithful Subjects in their own persons and otherwise done to his Grace and thereby sustained manifold costs and charges to his great honor and pleasure doth pardon the said two Ayds and accepteth the offer aforesaid and that the poorest of his said Commons should not be contributary to the said sum of 40000 l. hath pardoned 10000 l. parcel thereof and doth accept of 30000 l. in full satisfaction c. And that the Cities and Boroughs Towns and places being in every Shire not by themselves accountable in the Exchequer for Fifteens and Tenths be chargeable with the Shires c. And all Cities and Boroughs not contributary c. but accountable by themselves c. shall be chargeable by themselves towards the payment of the said 30000 l. with such sums as under the Act particularly appear c. And there under the Act appear the several Taxations of every several County City
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
agrees with our Law And he goeth further In tempore vero Novae Legis etiam est determinatio partis solvendae authoritate Ecclesiae That is by their Canons Instituta secundum quandam humanitatem ut scilicet non minus populus Novae Legis Ministros novi Testamenti exuberat quam populus veteris Legis ministris veteris Testamenti exhibebat praesertim cum Ministri Novae Legis sunt Majores Dignitate ut probat Apostolus 2 Cor. 3. Sic ergo patet Quod ad solutionem Decimarum tenentur homines partim quidem ex jure naturali quantum ad hoc quod aliqua portio data est ministris Ecclesiae partim vero ex institutione Ecclesiae quantum ad determinationem Decimae Partis See Doctor and Student Lib. 2. cap. 55. fol. 164. That the tenth part is not due by the Law of God nor by the Law of Nature which he calleth the Law of Reason And he citeth John Gerson who was a Doctor of Divinity in a Treatise which he calleth Regulae morales scil Solutio Decimaram sacerdotibus est de jure Divino quatenus inde sustententur sed quo ad tam hanc vel illam assignare aut in alios redditus Commutare positivi juris est And afterwards Non vocatur Portio Curatis debita propterea Decimae eo quod est Decima pars imo est interdum vicesima aut tricesima And he holdeth That a Portion is due by the Law of Nature which is the Law of God but it appertaineth to the Law of Man to assign Hanc vel illam portionem as necessity requireth for their Sustenance And further he saith That Tithes may be exchanged into Lands Annuity or Rent which shall be sufficient for the Minister c. And there he saith That in Italy and in other the East Countries they pay no Tithes but a certain Portion according to the Custome c. And all this is true if not that Tithes be discharged or changed by one of the said five waies And forasmuch as it appeareth by themselves that the part or value was part of the Iudiciall Law certainly the same doth not bind any Christian Common-wealth but that the same may be altered by reason of time place or other consideration as it appeareth in all punishments inflicted by the Iudiciall Law they do not bind none for Felony is now punished by death c. which was not so by the Iudiciall Law c. Also forasmuch as now it is confessed that the tenth part is now due Ex institutione Ecclesiae that is to say By their Canons and it appeareth by the Statute of 25 H. 8. cap. 19. That all Canons c. made against the Prerogative of the King in his Laws Statutes or Customes of the Realm are void and that was but a Declaratory Law For no Statute or Custome of the Realm can be taken away or abrogated by any Canon c. made out or within the Realm but only by Act of Parliament and that well appeareth by 10 H. 7. f. 17. c. 18. That there is a Canon or Constitution That no Priest ought to be impleaded at the Common Law And there Brian saith That a grave Doctor of the Law once said unto him That Priests and Clarks might be sued at the Common Law well enough For he said that Rex est persona mixta and is Persona unita cum Sacerdotibus Statutis Ecclesiae In which case the King might maintain his Iurisdiction by prescription By which it appeareth that prescription doth prevail against expresse Canons or Constitutions and is not taken away by them which proves that the Statute of 25 H. 8. was but a Declaration of the ancient Law before And there is an expresse Prohibition in Numb 18. Nihil aliud possedebunt Decimarum oblatione contenti quas in usus eoram necessaria separavi Which was not part of the Morall Law or Law of Nature but part of the Iudiciall And therefore men of the holy Church at this day do possesse Houses Lands and Tenements and not Tithes only The second point which agrees with the Law at this day which was adjudged in the said Record of 25 H. 3. is That the limits and bounds of Towns and Parishes shall be tried by the Common Law and not in the Spirituall Court and in this the Law hath great reason for thereupon depends the Title of Inheritance of the Lay Fee whereof the Tithes were demanded for Fines and Recoveries are the common assurances of Lay Inheritances and if the Spirituall Court should try the bounds of Towns if they determine that my Land lyeth in another Town then is contained in my Fine Recovery or other assurance I shall be in danger to lose my Inheritance and therewith agreeth 39 E. 3. 29. 5 H. 5. 10. 32 E. 4. t. Consultation 3 E. 4. 12 19 H. 6. 20. 50 E. 3. 20. many other Presidents untill this day And note there is a Rule in Law that when the Right of tithes shall be tried in the Spiritual Court the Spirit Court hath jurisdiction therof that our Courts shall be ousted of the Iurisdiction 35 H. 6. 47. 38 H. 6. 21. 2 E 4. 15. 22 E. 4. 23. 38 E. 3. 36. 14 H 7. 17. 13 H. 2. Jurisd 19. but that is when debate is between Parson and Vicar or when all is in one Parish but when they are in severall Parishes then this Court shall not be ousted of the Iurisdiction See 12 H. 2. to Jurisdiction 17. 13 R. 2. ibid. 19. 7 H. 4. 34. 14 H. 4. 17. 38 E 3. 56. 42 E. 3. 12. And yet there is a Canon expresly against this which see in Linwood titulo de penis 55. And so fol. 227 228. amongst the Canons or Constitutions of Bonaface An. Dom. 1277. And the causes wherefore the Iudges of the Common Law would not permit the Ecclesiasticall Iudges 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 both not amount to the value of the Tythes in kinde they would overthrow Note this difference Although that the parties do admit the Jurisdiction of the Court yet upon the pleading if the right of the Tythes shall come in debate there this Court shall be ousted of the Jurisdiction the Spiritual Court shall have Jurisdiction But when the right of tythes cometh in debate and the Spiritual Court cannot have Jurisdiction or Conusance of it as where a Lay-man is Plaintiff as Farmor or Defendant as Servant of the Parson as a Lay man Farmor cannot sue there nor he who justifies as Servant cannot be sued in Trespass But if the Suit be between Parson and Vicar or Parson and Parson and other Spiritual persons if the Kings Court be ousted of the Jurisdiction after severance of the ninth part yet the Libel ought to be for substraction of Tythes for of that they have jurisdiction and
not of Tythes severed from the nine parts for that shall be in Case of a Praemunire and it appeareth to the Common Law See 16 H. 2. in the Case of Mortuary Vide Decretalia Sexti Lib. 3. tit de Decimis cap. 1. fo 130. Col. 4. Et summa Angelica fo 72. the same And that also appeareth by Linwood amongst the Constitutions Simonis Mephum tit de Decimis cap. Quoniam propter fo 139. 6. verbo Consuetudines Consuetudo ut non solvantur aut minus plene solvantur Decimae non valet and ibidem secundum alios Quod in Decimis realibus non valet Consuetudo ut solvatur minus decima parte sed in personalibus c. And ibidem Litt. M. verbo Integre faciunt expresse contra opinionem quorundum Theologorum qui dicunt sufficere aliquid dari pro Decima And that is the true Reason in both the said Cases scil de modo Decimandi de Limitibus Parochiorum c. that they would not adjudg according to their Canons and therefore a Prohibition lieth and therewith agreeth 8 E. 4. 14. and the other Boóks abovesaid and infinite presidents and the rather after the Statute of 2 E. 6. cap. 13. And also the Customs of the Realm are part of the Laws of the Realm and therefore they shall be tryed by the Common Law as is aforesaid See 7 E. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Iustices VI. Mich. 6 Jacob. in the Exchequer Baron and Boys Case IN the Case between Baron and Boys in an Information upon the Sur Stat. 2 E. 6. cap. 14. of Ingrossers Statute of 5 E. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer That the Defendant had ingrossed Apples against the said Act The Barons of the Exchequer held clearly That Apples were not within the said Act and gave Iudgment against the Informer upon the matter apparent to them and caused the same to be entered in the Margent of the Record where the Iudgment was given and the Informer brought a Writ of Error in the Exchequer chamber and the only Question was Whether Apples were within the said Act the letter of which is That whatsoever person or persons c. shall ingross or get into his or their hands by buying contracting or promise taking other then by Demise Grant or Lease of Land or Tythe any Corn growing in the Fields or any other Corn or grain Butter Cheese Fish or other dead Victual within the Realm of England to the intent to sell the same again shall be accepted c. an unlawful Ingrosser And although that the Statute of 2 E. 6. cap. 15. made against Sellers of Victual which for their great gain conspire c. numbereth Butchers Brewers Bakers Cooks Costermongers and Fruterers as Victualers yet Apples are not dead Victuals within the Statute of 5 E. 6. For the Buyers and Sellers of Corn and other Victuals have divers Provisoes and Qualifications for them as it appeareth by the said Act but Costermongers and Fruterers have not any Proviso for them also always after the said Act they have bought Apples and other Fruits by Ingross and sold them again and before this time no Information was exhibited for them no more then for Plums or other fruit which serveth more for delicacy then for necessary Food But the Statute of 5 E. 6. is to be intended of things necessary and of common use for the sustenance of man and therefore the words are Corn Grain Butter Cheese or other dead Victual which is as much to say as Victual of like quality that is of like necessary and common use But the Statute of 2 E. 6. cap. 15. made against Conspiracies to enhaunce the prices was done and made by express words to extend it to things which are more of pleasure then of profit So it was said That of those Fruits a man cannot be a Forestaller within this Act of 5 E. 6. for in the same Branch the words are any Merchandize Victual or any other thing But this was not resolved by the Iustices because that the Information was conceived upon that branch of the Statute concerning Ingrossers VII Hill 27 Eliz. in the Chancery HIllary Term the 27 of Eliz. in the Chancery the Case was thus One Ninian Menvil seised of certain Lands in Fee took a wife Fine Dower Relation and levyed a Fine of the said Lands with proclamations and afterwards was indicted and out-lawed of High Treason and dyed The Conusees convey the Lands to the Queen who is now seised the five years pass after the death of the Husband The Daughters and Heirs of the said Ninian in a Writ of Error in the Kings Bench reverse the said Attainder M. 26 and 27 Eliz. last past and thereupon the Wife sueth to the Queen who was seised of the said Land as aforesaid by Petition containing all the special matter scil the Fine with proclamations and the five years passed after the death of her Husband the Attainder and the reversal of it and her own title scil her marriage and the seisin of her Husband before the Fine And the Petition being endorsed by the Queen Fiat droit aux parties c. the same was sent into the Chancery as the manner is And in this case divers Objections were made against the Demandant 1. That the said Fine with proclamations should bar the Wife of her Dower and the Attainder of her Husband should not help her for as long as the Attainder doth remain in force the same was a bar also of her Dower so as there was a double bar to the Wife viz. the Fine levyed with proclamations and the five years past after the death of her Husband and the Attainder of her Husband of his Treason But admit that the Attainder of the Husband shall avail the Wife in some manner when the same is now reversed in a Writ of Error and now upon the matter is in Iudgment of Law as if no Attainder had been and against that a man might plead That there is no such Record because that the first Record is reversed and utterly disaffirmed and annihilated and now by Relation made no Record ab initio and therewith agreeth the Book of 4 H. 7. 11. for the words of the Iudgment in a Writ of Error are Quod Judicium praedict Errores praedict alios in Recordo c. revocetur admittetur c. quod ipsa ad possessionem suam sive seisinam suam as the case requireth tenementorum suorum praedictorum una cum exitibus proficuis inde a tempore Judicii praedict reddit praecept ad omnia quae occasione Judicii illius omisit restituatur By which it appeareth that the first Iudgment which was originally imperfect and erroneous is for the same Errors now adnulled and revoked ab initio and the party against whom the Iudgment was given restored to his possession and to
tenementorum per eundem B. dicto medio tempore percept sine dilatione haberi sacias Et qualiter hoc praeceptum nostrum fuerit execut constare facias c. in Octab. c. By which it appeareth That the Plaintiff in the Writ of Error shall have restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Error cannot have any remedy against any stranger but only against him who is party to the Writ of Error and therefore the words of the said Writ command the Sheriff to enquire of the Issues and Profits generally between the Reversal and the Iudgment with all which he who recovers shall be charged and as the Law chargeth him with all the mean profits so the Law gives to him remedy notwithstanding the Reversal against all Trespassors in the interim for otherwise the Law should make a construction by relation to discharge them who are wrong doers and to charge him who recovers with the whole who peradventure hath good right and who entereth by the Iudgment of the Law which peradventure is reversed for want of form or negligence or ignorance of a Clark And therefore as to that purpose the Iudgment shall not be reversed ab initio by a Fiction of Law but as the truth was the same stands in force until it was reversed and therefore the Plaintiff in the Writ of Error after the Reversal shall have any Action of Trespass for a Trespass mean because he shall recover all the mean profits against him who recovered nor he recovereth after shall be barred of his Action of Trespass for a Trespass mean by reason that his recovery is reversed because he shall answer for all the mean profits to the Plaintiff in the Writ of Error and therewith agreeth Brian Chief Iustice 4 H. 7. 12. a. Note Reader If you would understand the true sence and Iudgment of the Law it is needful for you to know the true Entries of Iudgments and the Entries of all proceedings in Law and the manner and the matter of Writs of Execution of such Iudgments See Butler and Bakers Case in the third part of my Reports good matter concerning Relations So as it was resolved in the Case at Bar Although that to some intent the Reversal hath relation yet to bar the Wife of her Dower by Fiction of Law by the Fine with proclamations and five years past after the death of her Husband when in truth she had not cause of Action nor any right or title so long as the Attainder stood in force should be to do wrong by a Fiction of Law and to bar the Wife who was a meer stranger and who had not any means to have any Relief until the Attainder was reversed And as unto the other point or Objection that the Demandant on the Petition ought to have an Office found for her it was resolved that it needed not in this case because that the title of Dower stood with the Queens title and affirmed it otherwise if the title of the Demandant in the Petition had disaffirmed the Queens title also in this Case the Queen was not entituled by any Office that the Wife should be driven to traverse it c. for then she ought to have had an Office to finde her title But in Case of Dower although that Office had been found for the Queen which doth not disaffirm the title of Dower in such case the Wife shall have her Petition without Office because that Dower is favored in Law she claiming but onely for term of life and affirming the title of the Queen See the Sadlers Case in the fourth part of my Reports And the case which was put on the other side was utterly denyed by the Court for it was resolved That if a man seised of Lands in Fee taketh a Wife of eight years of age and alieneth his Lands and afterwards the Wife attaineth to the age of nine years and afterwards the Husband dyeth that the Wife shall be endowed For although at the time of the alienation the Wife was not dowable yet for as much as the marriage and seisin in Fee was before the alienation and the title of Dower is not consummate until the death of her Husband so as now there was marriage seisin of Fee age of nine years during the Coverture and the death of the Husband for that cause she shall be endowed For it is not requisite that the marriage seisin and age concur together all at one time but it is sufficient if they happen during the Coverture So if a man seised of Lands in Fee take a Wife and afterwards she elopes from her Husband now she is barrable of her Dower if during the Elopement the Husband alieneth and after the Wife is reconciled the Wife shall be endowed So if a man hath issue by his Wife and the issue dyeth and afterwards Land descendeth to the Wife or the Wife purchaseth Lands in Fee and dyeth without any other issue the Husband for the issue which he had before the Discent or purchase shall be Tenant by the curtesie for it is sufficient if he have issue and that the Wife be seised during the Coverture although that it be at several times But if a man taketh an Alien to Wife and afterwards he alieneth his Lands and afterwards she is made a Denizen she shall not be endowed for she was absolutely disabled by the Law and by her birth not capable of Dower but her capacity and ability began onely by her Denization but in the other case there was not any incapacity or disability in the person but onely a temporary Bar until such age or reconcilement which being accomplished the temporary Bar ceaseth As if a man seised of Lands in Fee taketh a Wife and afterwards the Wife is attainted of Felony and afterwards the Husband alieneth and afterwards the Wife is pardoned and afterwards the Husband dyeth the Wife shall be endowed for by her birth she was not uncapable but was lawfully by her marriage and seisin in Fee entituled to have Dower and therefore when the impediment is removed she shall be endowed VIII Trinit 44 Eliz. In the Kings-Bench Sprat and Heals Case JOhn Sprat Libelled in the Spiritual Court against Walter Heal for Tythes Covin substraction of Tythes the Defendant in the Spiritual Court pleaded that he had divided the Tythes from the nine parts and then the Plaintiff made addition to the Libel in the nature of a Replication scil That the Defendant divided the Tythes from the nine parts quod praedict the Plaintiff non fatetur sed prorsus diffitetur yet presently after this pretended division in fraudem legis he took and carryed away the same Tythes and converted them to his own use and the Plaintiff thereupon obtained sentence in the Spiritual Court and to recover the treble value according to the Statute of 2 E. 6. cap. 13. And thereupon Heal made a
and Seale put to the Transcript ingrossed and not to the Testament it self and so out of the Statute and the Statute extends only when the Probat and Seale is put to the Testament it self and for the ingrossing of it after the Probate no certain Fee is provided by the Statute But for the Registring of it after it is proved there is an expresse Fee in the Statute But I conceived that the said taking of the fourteen shillings ten pence in the Case at Bar was directly against the Statute For the Act is in the Negative and if the Executor requireth the Testament to be ingrossed in Parchment he ought to agree with him who he requireth to do it as he may But the Ordinary Officiall c. ought not to exact any Fee for the same of the party as a thing due to him for divers Causes 1. Because the words of the Act are expressed for the Probation c. and for the registring sealing writing praysing making of Inventories Fines giving of Acquittances c. which word writing extends expresly to this Case 2. The words are Or any thing concerning the same Probate and when the Seal and Probate is put to the Transcript the same without question concerns the Probate for the Probat is not put to any writing but only to that therefore the same concerns the Probate 3. Such a Construction should make the Act idle and vain for if the Ordinary Officiall c. might take as much as he pleaseth for the ingrossing done by his Ministers as a Fee due to him all the purview of the Statute which is penned so precisely concerning persons scil Bishops Ordinaries and all persons who have power to prove Wills and Testaments Registers Scribes Summoners Apparations or any other the Ministers as for the thing it self scil the probation insinuation approbation registring sealing writing praysing making of Inventories Fines giving of Acquittances or any other thing concerning the same should be all in vain by that evasion of Transcribing of it as well against the expresse Letter of the Act as the intention and moving of it Also the Statute saith five shillings and not above so as the manner of precise penning of it excludes all nice evasions And the Act ought to be expounded to suppresse Extortion which is a great affliction and impoverishing of the poor Subjects 4. As this Case is he annexeth the Probate and Seale to the Transcript ingrossed which the Plaintiff brought with him and offered to the Defendant so as the Case at Bar was without question And generally the Ordinary Officiall c. cannot exact or take any Fee for any thing which concerns the Probate of a Will or Testament but that which the Statute limits And afterwards the Iury found for the Plaintiff and of such opinion was Walmesley Warberton Daniel and Foster Iustices the next Term in all things But upon exception in Arrest of Iudgment for not pursuing of the Act in the Information Iudgment is not yet given c. X. Hillar Anno 6 Jacobi Regis In the Common Pleas. NOta that in this Terme a Question was moved to the Court Aide to make the Kings eldest Son Knight which was this If Tenant in Burgage should pay Ayde unto the King to make his eldest Son Knight And the Point rests upon this If the Tenure in Burgage be a Tenure in Socage For by the ancient Commmon Law every Tenant in Knights Service and every Tenant in Socage was to give to his Lord a reasonable Ayde to make his eldest Son a Knight and to marry his eldest Daughter and that was incertain at the Common Law and also incertain when the same Vide F. N. B. 82. 20. should be paid And this appeareth by Glanvil Lib. 9. cap. 8. fol. 70. who wrote in the time of Henry the second Nihil autem certum Statutum de hujusmodi auxiliis dandis vel exigendis c. sunt alii praeterea See the statute of 27 H. 8 cap 10 of uses in the Preamble concerning Aides to make the eldest Son Knight and to marry the Daughter Casus in quibus licet Dominis auxilia solvenda sunt certa forma praescripta ab hominibus suiis ut silius suus haeres fiat miles vel si primogenitam suam filiam maritaverit c. And in the beginning of the Chapter it is called Rationabile Auxilium because that then it was not certain but to be moderated by reason in respect of Circumstances And by the Preamble of the Statute of West 1. An. 3 E. 1. cap. 35. Where it is said Forasmuch as before that time reasonable Ayde to make ones Son Knight or to marry his Daughter was never put in certain nor when the same ought to be payd nor how much be taken the said Act put the said two incertainties to a certainty 1. That for a whole Knights Fee there be taken but 20 s. and of 20 l. Lands holden in Socage 20 s. and of more more and of less less according to the rate by which the Ayd it self was set certain 2. That none might levy such Ayd to make his son a Knight until his son be of the age of fifteen years nor to marry his daughter until she be of the age of seven years And Fleta who wrote after the said Act calls them rationabilia auxilia ad filium militem faciendum vel ad filiam primogenitam maritandum And by the Statute of 25 E. 1. where it is provided That no Taxes shall be taken but by common consent of the Realm there is an exception of the ancient Ayds c. which is to be intended of these Ayds due unto the King by the ancient Common Law But notwithstanding the said Act of VVestm 1. it was doubted whether the King because he is not expresly named were bound by it and therefore in the twentieth year of E. 3. the King took an Ayd of 40 s. of every Knights Fee for to make the Black Prince Knight and nothing then of Lands holden in Socage and to take away all question concerning the same the same was confirmed to him in Parliament and afterwards anno 25 E. 3. cap. 11. it is enacted That reasonable Ayd to make the Kings eldest Son Knight and to marry his eldest Daughter shall be demanded and levyed after the form of the Statute made thereof and not in other manner that is to say Of every Fee holden of the King without Mean 20 s. and no more and of every 20 l. Land holden of the King without Mean in Socage 20 s. and no more Now Littleton lib. 2. cap. 10. fol. 36. b. Burgage Tenure is where an ancient Borough is of which the King is Lord and those who have Tenements within the Borough hold of the King their Tenements that every Tenant for his Tenement ought to pay to the King a certain Rent and such Tenure is but Tenure in Socage and all Socage Land is contributary to
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
of them to the use of himself for the term of his life and after to the use of his eldest sonne and to such a woman which he shall marry and to the heirs males of the body of the son and afterwards the father dieth and after the son taketh a wife and dieth if the wife shall take an Estate for life and the doubt was because the wife of the son was not within the Considerations and the use was limited to one who was capable scil the son and to another who was not capable and therefore the son should take an estate in tail executed But it was resolved by the said two chief Iustices and chief Baron That the Wife should take well enough and as to the first Reason they resolved That the Wife was within the consideration for the consideration was for the advancement of his posterity and without a Wife the Son cannot have posterity also when the Wife of the Son is sure of a Ioynture the same is for the advancement of the Son for thereby he shall have the better marriage And as to the second it was resolved That the Estate of the Son shall support the use to the Defendant and when the contingent happeneth the Estate of the Son shall be changed according to the limitation scil to the Son and the woman and the Heirs of the body of the Son And so it was resolved in the Kings-Bench by Popham chief Iustice and the whole Court of the Kings-Bench in the Reign of Queen Eliz. in Sheffields Case for both points XVIII Trinit 7 Jacobi Regis In the Court of Wards Sparies Case JOhn Spary seised in fee in the right of his Wife of Lands holden of the Crown by Knights service had issue by her and 22 Decemb. anno 9 Eliz. aliened to Edward Lord Stafford the Wife dyed the issue of full age the Lands continue in the hands of the Alienee or his Assigns and ten years after the death of the Father and twelve years after the death of the Mother Office is found 7 Jacobi finding all the special matter after the death of the Mother the Question was Whether the mean profits are to be answered to the King and it was resolved by the said two chief Iustices and the chief Baron That the King should not have the mean profits because that the Alienee was in by title and until Entry the Heir hath no remedy for the mean profits but that the King might seise and make Livery because that the Entry of the Heir is lawful by the Statute of 32 H. 8. XIX Trinit 7 Jacobi Regis In the Court of Wards IT was found by force of a Mandamus at Kendal in the County of VVestmerland the 21 of December 6 Jacobi Regis That George Earl of Cumberland long before his death was seised in tayl to him and to the Heirs males of his body of the Castles and Mannors of Browham Appleby c. the Remainder to Sir Ingram Clifford with divers Remainders over in tayl the Remainder to the right Heirs of Henry Earl of Cumberland Father of the said George and that the said George Earl so seised by Fine and Recovery conveyed them to the use of himself and Margaret his Wife for their lives for the Ioynture of the said Margaret and afterwards to the Heirs males of the body of George Earl of Cumberland and for want of such issue to the use of Francis now Earl of Cumberland and to the Heirs males of his body begotten and for want of such issue to the use of the right Heirs of the said George and afterwards by another Indenture conveyed the Fee-simple to Francis Earl By force of which and of the Statute of uses they were seised accordingly and afterwards 30 Octob. anno 3 Jacobi the said George Earl of Cumberland dyed without Heir male of his body lawfully begotten and further found that Margaret Countess of Cumberland that now is was alive and took the profits of the premisses from the death of the said George Earl of Cumberland until the taking of that inquisition and further found the other points of the Writ And first it was objected that here was no dying seised found by Office and therefore the Office shall be insufficient But as to that it was answerod and resolved That by this Office the King was not entitled by the common Law for then a dying seised or at first a dying the day of his death was necessary But this Office is to be maintained upon the Statute of 32 and 34 H. 8. by force of which no dying seised is requisite but rather the contrary scil If the Land be as this case is conveyed to the Wife c. And so it was resolved in Vincents case anno 23 Eliz. where all the Land holden in Capite was conveyed to the younger Son and yet the eldest Son was in Ward notwithstanding that nothing descended The second Objection was It doth not appear that the Estate of the Wife continued in her until the death of the Earl for the Husband and Wife had aliened the same to another and then no primer seisin shall be as it is agreed in Binghams case As to that it was answered and resolved That the Office was sufficient prima facie for the King because it is a thing collateral and no point of the Writ and if any such alienation be which shall not be intended then the same shall come in of the other part of the Alienee by a Monstrans de droit and the case at Bar is a stronger case because it is found that the said Countess took the profits of the premisses from the death of George the Earl until the finding of the Office XX. Trinity Term 7 Jacobi In the Court of Wards Wills Case HEnry Wills being seised of the fourth part of the Mannor of Wryland in the County of Devon holden of Queen Elizabeth in Socage-tenure in capite of the said fourth part enfeoffed Zachary Irish and others and their Heirs to the use of the said Henry for the term of his life and afterwards to the use of Thomas Wills his second son in tayl and afterwards to the use of Richard Wills his youngest son in tayl and for default of such issue to the use of the right Heirs of the said Henry and afterwards the said Henry so seised as abovesaid dyed thereof seised William Wills being his Son and Heir of full age Thomas the second son entered as into his Remainder All this matter is found by Office and the question was If the King ought to have primer seisin in this case and that Livery or Ouster le main shall be sued in this case by the Statutes of 32 and 34 H. 8. And it was resolved by the two chief Iustices and the chief Baron that not if in this case by the common Law no Livery or Ouster le main shall be sued and that was agreed by them all by the experience and course of the
his Deed indented dated the 22 of December in the first year of King James made between him of the one part and the said John Sammes and George Sammes Son and Heir apparent of the said John of the other part did bargain sell grant enfeoff release and confirm unto the said John Sammes the said Mead called Grany Mead to have and to hold the said Mead unto the said John Sammes and George Sammes and their Heirs and Assigns to the onely use and behoof of the said John Sammes and George Sammes their Heirs and Assigns for ever and by the same Indenture Sir Thomas did covenant with John and George to make further assurance to John and George and their Heirs to the use of them and their Heirs and Livery and Seisin was made and delivered according to the true intent of the said Indentures of the within mentioned premisses to the uses within mentioned John Sammes the Father dyeth George Sammes his Son and Heir being within age the Question was Whether George Sammes should be in Ward to the King or no And in this case three points were resolved 1. For as much as George was not named in the premisses he cannot take by the Habendum and the Livery made according to the intent of the Indenture doth not give any thing to George because the Indenture as to him is voyd but although the Feoffment be good onely to John and his Heirs yet the use limited to the use of John and George and their Heirs is good 2. If the Estate had been conveyed to John and his Heirs by the Release or Confirmation as it well may be to a Tenant by Copy of Court Roll the use limited to them is good for upon a Release which creates an Estate a use may be limited or a Rent reserved without question but upon a Release or Confirmation which enures by way of Mitter le droit an use cannot be limited or a Rent reserved But the third was of greater doubt If in this case the Father and Son were Ioynt-tenants or Tenants in common For it was objected when the Father is onely enfeoffed to the onely use of him and his Son and their Heirs in the Per that in this case they shall be Tenants in common By the Feoffment the Father is in by the common Law in the Per and then the limitation of the use to him and his Son and to their Heirs cannot devest the Estate which was vested in him by the common Law out of him and vest the Estate in him in the Post by force of the Statute according to the limitation of the use and therefore as to one moyety the Father shall be in by force of the Feoffment in the Per and the Son as to the other moyety shall be in by force of the Statute according to the limitation of the use in the Post and by consequence they shall be Tenants in common But it was answered and resolved That they were Ioynt-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 and B. and their Heirs although that he was onely seised of the Land the use was joyntly to A. and B. For a use shall not be suspended or extinct by a sole seisin or joynt seisin 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 Heir as it appeareth in 13 H. 7. 6. in Stoners Case and by the Statute of 27 H. 8. cap. 10. of Vses it appeareth That when several persons are seised to the use of any of them that the Estate shall be executed according to the use And as to that which was said That the Estate of the Land which the Father hath in the Land as to the moyetyof 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 maketh a Feoffment in Fee to one to tho use of him and the Heirs of his body in this case for the benefit of the issue the Statute according to the limitation of the uses devests the Estate vested in him by the common Law and executes the same in himself by force of the Statute and yet the same is out of the words of the Statute of 27 H. 8. which are Where any person c. stand or be scised c. to the use of any other person and here he is seised to the use of himself and the other clause is Where divers and many persons c. be joyntly seised c. to the use of any of them c. and in this case A. is sole seised But the Statute of 27 H. 8. hath been always beneficially expounded to satisfie the intention of the parties which is the direction of the uses according to the Rule of the Law So if a man seised of Lands in Fee-simple by Deed covenant with another that he and his Heirs will stand seised of the same Land to the use of himself and the Heirs of his body or unto the use of himself for life the remainder over in Fee in that case by the operation of the Statute the Estate which he hath at the common Law is devested and a new Estate vested in himself according to the limitation of the use And it is to be known that an use of Land which is but a pernency of the profits is no new thing but part of that which the owner of the Land had and therefore if Tenant in Borrough-English or a man seised of the part of his Mother maketh 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 in 5 E. 4. 7. See 4 and 5 Phil. and Mar. Dyer 163. So if a man maketh a Feoffment unto the use of another in tayl and afterwards to the use of his right Heirs the Feoffor hath the Reversion of the Land in him for if the Donee dyeth without isse the Law giveth the use which was part of the Land to him and so it was resolved Trinity 31 Eliz. between Fenwick and Milford in the Kings-Bench So in 28 H. 8. Dyer 11. the Lord Rosses Case A man seised of one Acre by Priority and of another Acre by Posteriority and makes a Feoffment in Fee of both to his use and it was adjudged that although both pass at one instant yet the Law shall make a Priority of the uses as if it were of the Land it self which proves that the use is not any new thing for then there should be no Priority in the Case See 13 H. 7. b. by Butler So in the Case at Bar The use limited to
same but they estreat the same into the Exchequer which hath power by the Law to writ forth Proces to the Sheriff to levy the same But if a man be convicted in the Star-Chamber for Forgery upon the Statute of 5 Eliz. that in that case for the double costs and damages that an English Writ shall be made directed to the Sheriff c. reciting the conviction and the Statute for the levying of the said costs and damages of the goods and chattels and profits of the Lands of the Defendant and to bring in the mony into the Court of Star-Chamber and the Writ shall be sealed with the great Seal and the Test of the King For the Statute of 5 Eliz. hath given Iurisdiction to the Court of Star-Chamber and power to give Iudgment amongst other things of the costs and damages which being given by force of the said Act of Parliament by consequence the Court by the Act hath power to grant Execution Quia quando aliquid conceditur ei omnia concedi videntur per quod devenitur ad illud And it was resolved That the giving of the damages to the Plaintiff was begun but of late times and although that one or two Presidents were shewed against this Resolution they being against the Law the Iudges had not any regard to them The like Resolution was in the Case of Langdale in that Court XXXI Hillary Term 7 Jacobi Regis In the Common-Pleas Morse and Webbs Case IN a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of November in the third year of the Reign of the King that now is in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conusance because that the place where is an Acre of Land which is the Freehold of the said William Sherington and for damage-feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land in parcel of Downfield and that he himself at the time and before the taking c. was and yet is seised of two yard Land with the appurtenances in Luddington aforesaid And that he and all those whose Estate he hath in the said two yards of Land time out of minde c. have used to have Common of pasture per totam contentam of the said place called the Downfield whereof c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep at certain times and seasons of the year as to the said two yards Lands with the appurtenances appertaining and that he put in the said two Oxen to use his Common c. And the Defendant did maintain his Avowry and traversed the Prescription upon which the parties were at issue and the Iury gave a special Verdict That before the taking one Richard Morse Father of the said John Morse and now Plaintiff whose Heir he is was seised of the said two yards Lands and that the said Richard Morse c. had the Common of Pasture for the said Cattel per totum contentum of the said Downfield in manner and form as before is alledged and so seised The said Richard Morse in the twentieth year of Queen Elizabeth demised to William Thomas and John Fisher divers parcels of the said two yards Lands to which c. viz. the four Buts of arable with the Common and intercommon to the same belonging for the term of four hundred years by force of which the said William Thomas and John Fisher entered and were possessed and the said Richard so seised dyed thereof seised by which the said two yards Lands in possession and Reversion descended to the said John Morse the now Plaintiff And if upon the whole matter the said John Morse now hath and at the time of the taking c. had Common of Pasture c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep c. as to the said two Acres of Land with the appurtenances belonging in Law or not the Iury prayed the advice of the Court. Note that this Plea began Trin. 5 Jacobi Rot. 1405. And upon Argument at the Bar and at the Bench it was resolved by the whole Court that it ought to be found against the Defendant who had traversed the Prescription For although that all the two years Lands had been demised for years yet the Prescription made by the Plaintiff is true for he is seised in his Demesn as of Fee of the Freehold of the two yards of Land to which c. And without question the Inheritance and Freehold of the Common after the years determined is appendant to the said two yard Lands and therefore clearly the issue is to be found against the Defendant But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in evidence 2. It was resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shall have Common Rateable and in such manner that the Land in which c. shall not be surcharged and if so small a parcel be demised which will not keep one Ox nor a Sheep then the whole Common shall remain with the Lessor so always as the Land in which be not surcharged 3. It was resolved That Common appendant unto Land is as much as to say Common for Cattel levant and couchant upon the Land in which c. So that by the severance of part of the Land to which c. so prejudice can come to the Ter-tenant in which c. 4. See the Case of in the fourth part of my Reports fo was affirmed for good Law and there is no difference when the Prescription is for Cattel levant and couchant and for a certain number of Cattel levant and couchant But when the Prescription is for Common appurtenant to Land without alledging that it is for Cattel levant and couchant there a certain number of the Cattel ought to be expressed which are intended by the Law to be levant and couchant XXXII Hill 7 Jacobi Regis In the Common-Pleas Hughes and Crowthers Case IN a Replevin between Robert Hughs Plaintiff and Richard Crowther Defendant which began Trin. 6 Jacobi Rot. 2220 The Case was that Charls Fox was seised of six acres of Meadow in Bedston in the County of Salop in Fee and 10 Octob. 9 Eliz. leased the same to Charls Hibbens and Arthur Hibbens for 60 years if the aforesaid Charls Hibbens and Arthur Hibbens should so long live and afterward Charls died and if the Lease determine by his death was the Question and it was adjudged That by his death the Lease was determined for the life of a man is meer collaterall unto the Estate for years otherwise it is if a