Trees and Clay c. which he had not but as things annexed to the Land and therefore he could not have them when he had departed with his whole interest nor he could not take them either for Reparations or otherwise But when Tenant for life Leaseth for years except the Timber Trees the same remaineth yet annexed to his Freehold and he may command the Lessee to take them for necessary Reparations of the Houses And in the said case of Saunders a Iudgment is cited between Foster and Miles Plaintiffs and Spencer and Bourd Defendants That where Lessee for years assigns over his term except the Trees that Waste in such case shal be brought against the Assignee but in this case without question Waste lieth against the Tenant for life and so there is a difference c. XXVIII Mich. Term 7 Jacobi Regis In the Court of Wards Hulmes Case THe King in the right of his Dutchy of Lancaster Lord Richard Hulm seised of the Mannor of Male in the County of Lancaster holden of the King as of his Dutchy by Knights service Mesne and Robert Male seised of Lands in Male holden of the Mesn as of his said Mannor by Knights service Tenant Richard Hulm dyed after whose death 31 Hen. the eight it was found that he dyed seised of the said Menalty and that the same descended to Edward his Son and Heir within age and found the Tenure aforesaid c. And during the time that he was within age Robert Male the Tenant dyed after which in anno 35 H. 8. it was found by Office That Robert Male dyed seised of the said Tenancy peravail and that the same descended to Richard his Son and Heir within age and that the said Tenancy was holden of the King as of his said Dutchy by Knights service whereas in truth the same was holden of Edward Hulm then in Ward of the King as of his Menalty for which the King seised the Ward of the Heir of the Tenant And afterwards anno quarto Jacobi Regis that now is after the death of Richard Male who was lineal Heir of the said Robert Male by another Office it was found That the said Richard dyed seised of the said Tenancy and held the same of the King as of his Dutchy by Knights service his Heir within age whereupon Richard Hulm Cosin and Heir of the said Richard Hulm had preferred a Bill to be admitted to his Traverse of the said Office found in quarto Jacobi Regis And the Question was Whether the Office found in 35 H. 8. be any estoppel to the said Hulm to Traverse the said last Office or if that the said Hulm should be driven first to Traverse the Office of 35 H. 8. And it was objected That he ought first to Traverse the Office of 35 H. 8. as in the Case of 26 E. 3. 65. That if two Fines be levyed of Lands in ancient Demesn the Lord of whom the Land is holden ought to have a Writ of Deceit to reverse the first Fine and in that the second Fine shall not be a Bar And that the first Office shall stand as long as the same remains in force To which it was answered and resolved by the two Chief Iustices and the Chief Baron and the Court of Wards That the finding of an Office is not any estoppel for that is but an enquest of Office and the party grieved shall have a Traverse to it as it hath been confessed and therefore without question the same is no estoppel But when an Office is found falsly that Land is holden of the King by Knights service in capite or of the King himself in Socage if the Heir sueth a general Livery now it is holden in 46 E. 3. 12. by Mowbray and Persey that he shall not after add that the Land is not holden of the King but that is not any estoppel to the Heir himself who sueth the Livery and shall not conclude his Heir for so saith Mowbray himself expresly in 44 Assis pl. 35. That an Estoppel by suing of Livery shall estop onely himself the Heir during his life And in 1 H. 4. 6. b. there the case is put of express confession and suing of Livery by the issue in tayl upon a false Office and there it is holden that the Iurors upon a new Diem clausit extremum after the death of such special Heir are at large according to their conscience to finde that the Land is not holden c. for they are sworn ad veritatem dicendum and their finding is called veredictum quasi dictum veritatis which reason also shall serve when the Heir in Fee-simple sueth Livery upon a false Office and the Iurors after his death ought to finde according to the truth So it is said 33 H. 6. 7. by Laicon that if two sisters be found Heirs whereof the one is a Bastard if they joyn in a Suit of Livery she which joyneth with the Bastard in the Livery shall not alledg Bastardy in the other but there is no Book that saith that the Estoppel shall endure longer then during his life and when Livery is sued by a special Heir the force and effect of the Livery is executed and determined by his death and by that the Estoppel is expired with the death of the Heir but that is to be intended of a general Livery but a special Livery shall not conclude one But as it is expressed the words of a general Livery are When the Heir is found of full age Rex Escheatori c. Scias quod cepimus homigium I. filii haeredis B. defuncti de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus c. And when the Heir was in Ward at his full age the Writ of Livery shall say Rex c. Quia I. filius haeres B. defuncti qui de nobis tenuit in capite aetatem suam coram te sufficienter probavit c. Ceperimus homagium ipsius I. de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus ut supra c. Which Writ is the Suit of the Heir and therefore although that all the words of the Writ are the words of the King as all the Writs of the King are and although that the Livery be general de omnibus terris tenementis de quibus B. pater I. tenuit de nobis in capite die quo obiit without direct affirmation that any Mannor in particular is holden in capite and notwithstanding that the same is not at the prosecution of the Kings Writ and no Iudgment upon it yet because the general Livery is founded upon the Office and by the Office it was found That divers Lands or
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
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
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
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
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
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
in the Information was denied in the Kings Bench was utterly denied for the same was moved when two Iudges were in Court who gave not any opinion therein but required Serjeant Hutton who moved it to move the same again when the Court was full c. XII Pasch 7 Jacobi Regis NOte that this Term a Question was moved at Serjeants-Inne Who by the Common Law ought to repair the Bridges common Rivers and Sewers and the High-waies and by what means they shall be compelled to it and first of the Bridges And as to them it is to be known That of common Right all the Country shall be charged to the Reparation of a Bridge and therewith agreeth 10 E. 3. 28. b. That a Bridge shall be levied by the whole Country because it is a common Easement for the whole Country and as to that Point the Statute of 22 H. 8. cap. 5. was but an affirmance of the Common Law And this is true when no other is bound by the Law to repair it but he who hath the Toll of the men or Cattell which passe over a Bridge or Cawsey ought to repaire the same for he hath the Toll to that purpose Et qui sentit commodum sentire debet onus and therewith agrees 14 E. 3. Bar 276. Also a man may be bounden to repaire a Bridge ratione Tenurae of certain Land But a particular person cannot be bound by prescription scil That he and all his Ancestors have repaired the Bridge if it be not in respect of the Tenure of his Land taking of Toll or other profit for the Act of the Ancestor cannot charge the Heir without profit But an Abbot or other Corporation who hath a lawfull being may be charged scil That he and his Predecessors time out of mind c. have repaired the Bridge For the Abbot and Covent may bind their Successors vide 21 E. 4. 28. 27 E. 3. 8. 22 Ass 8. 5 H. 7. 3. And if an Abbot and his Predecessors time out of mind have repaired a Bridge of Almes they shall be compelled to repaire it and therewith agreeth 10 E. 3. 28. So it is of a High-way of common Right all the Country ought for to repaire it because that the Country have their ease and passage by it which stands with the reason of the Case of the Bridge but yet some may be particularly bounden to repaire it as is aforesaid He who hath the Land adjoyning ought of common Right without prescription to scoure and cleanse the Ditches next to the way to his Land and therewith agreeth the Book of 8 H. 7. 5. But he who hath Land adjoyning without prescription is not bound to repair the way So of a common River of common Right all who have ease and passage by it ought to cleanse and scoure it For a common River is as a common Street as it is said in 22 Ass and 37 Ass 10. But he who hath Land adjoyning to the River is not bounden to cleanse the River unlesse he hath the benefit of it scil a Toll or a Fishing or other profit See 37 Ass p. 10. XIII Pasch 7 Jacobi Sir William Reades and Boothes Case IN the great Case in the Star-Chamber of a Forgery Between Sir William Read Plaintiff and Roger Booth and Cutbert Booth and others Defendants the Case was this The said Roger Booth 38 Eliz. was convicted in that Court of the publication of a Writing under Seal forged in the name of Sir Thomas Gresham of a Rent-charge of a hundred pounds cut of all his Lands and Tenements to one Markham for ninety nine years bearing date the one and twentieth year of Queen Elizabeth the said Roger knowing it to be forged And afterwards the said Sir William Read exhibited the said Bill against the said Boothes and others for forging of another writing under Seal bearing date the twentieth of Eliz. in the name of the said Sir Thomas Gresham purporting a Deed of Feoffment of all his Lands except certain to Sir Rowland Heyward and Edward Hoogon and their Heirs to certain uses which was in effect to the use of Markham the younger and his Heirs And for the publication of the said Writing knowing the same to be forged was the Bill exhibited And now upon the hearing of the Cause in the Star-Chamber this Term These doubts were moved upon the Statute of 5 Eliz 1. If one who is convicted of publication of a Deed of Feoffment of Rent-charge knowing the same to be forged Again at another day forge another Deed of Feoffment or Rent-charge if he be within the case of Felony within the said Act which doubt ariseth upon these words eftsoons committed again any of the said Offences And therefore it was objected that he ought to commit again the same natute of Offence scil If he were convicted of Forgery he ought to forge again and not only publish knowing c. And if first he were convicted of publishing knowing c. he ought to offend again in publication knowing c. and not in Forgery for eftsoons which is iterum implyeth that it ought to be of the same nature of Offence The second doubt was If a man committeth two Forgeries the one in 37 of Eliz. and the other in 38. and he is first convicted of the last if he may be now impeached for the first The third doubt was when Roger Booth was convicted in 38 Eliz. and afterwards is charged with a new Forgery in 37 Eliz. If the Witnesses proving in truth that it was forged after the first conviction if the Star Chamber hath Iurisdiction of it The last doubt was when Cutbert Booth who never was convicted of Forgery before if in truth the Forgery was done and so proved in 38 Eliz If he might be convicted upon this Bill because that the Forgery is alledged before that it was done As to the first and second doubts it was resolved by the two chief Iustices and the chief Baron that if any one be convicted of Forgery or publication of any Writing concerning Freehold c. within the first Branch or concerning Interest or Term for years c. within the second Branch and be convicted if afterwards he offend either against the first Branch or second that the same is Felony As if he forgeth a Writing concerning interest for years within the second branch and be convicted and afterwards he forgeth a Charter of Feoffment within the first branch or è converso that that is Felony and that by expresse words of the Act That if any person or persons being hereafter convicted or condemned of any of the said Offences which words any of the said Offences extend to all the Offences mentioned before either in the first branch or in the second branch by any the waies or means above limited shall after any such conviction or condemnation eftsoons commit or perpetrate any of the said Offences in form aforesaid which words Any of the said Offences c.
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
Tenements were holden of the King in capite for this cause the suing of the Writ shall conclude the Heir onely which sueth the Livery and after his death the Iurors in a new Writ of Diem clausit extremum are at large as before is said And if that Iury finde falsly in a Tenure of the King also the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King c. in Socage the Heir may traverse the last Office for by that he is grieved onely and he shall not be driven to traverse the first Office and when the Father sueth Livery and dyeth the conclusion is executed and past as before is said And note that there is a special Livery but that proceeds of the Grace of the King and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda c. or to the Heir within age as it appeareth in 21 E. 3. 40. And that is general and shall not comprehend any Tenure as the general Livery doth and therefore it is not any estoppel without question And at the Common Law a special Livery might have been granted before any Office found but now by the Statute of 33 H 8. cap. 22. it is provided That no person or persons having Lands or Tenements above the yearly value of 20 l. shall have or sue any Livery before inquisition or Office found before the Escheator or other Commission But by an express clause in the same Act Livery may be made of the Lands and Tenements comprized or not comprized in such Office so that if Office be found of any parcel it is sufficient And if the Land in the Office doth exceed 20 l. then the Heir may sue a general Livery after Office thereof found as is aforesaid but if the Land doth not exceed 5 l. by the year then a general Livery may be sued without Office by Warrant of the Master of the Wards c. See 23 Eliz. Dyer 177. That the Queen ex debito Justitiae is not bound at this day after the said Act of 33 H 8 to grant a special Livery but it is at her election to grant a special Livery or to drive the Heir to a general Livery It was also resolved in this Case That the Office of 35 H. 8. was not traversable for his own Traverse shall prove that the King had cause to have Wardship by reason of Ward And when the King cometh to the possession by a false Office or other means upon a pretence of right where in truth he hath no right if it appeareth that the King hath any other right or interest to have the Land there none shall traverse the Office or Title of the King because that the Iudgment in the Traverse is Ideo consideratum est quod manus Domini Regis a possessione amoveantur c. which ought not to be when it appeareth to the Court that the King hath right or interest to have the Land and to hold the same accordingly See 4 H. 4. fo 33. in the Earl of Kents Case c. XXIX Mich. 7 Jacobi Regis NOte The Priviledg Order or Custom of Parliament either Parliament of the Vpper House or of the House of Commons belongs to the determination or decision onely of the Court of Parliament and this appeareth by two notable Presidents The one at the Parliament holden in the 27 year of King Henry the sixth There was a Controversie moved in the Vpper House between the Earls of Arundel and of Devonshire for their seats places and preheminences of the same to be had in the Kings presence as well in the High Court of Parliament as in his Councels and elsewhere The King by the advice of the Lords spiritual and temporal committed the same to certain Lords of Parliament who for that they had not leisure to examine the same it pleased the King by the advice of the Lords at his Parliament in anno 27 of his Reign That the Iudges of the Land should hear see and examine the Title c. and to report what they conceive herein The Iudges made report as followeth That this matter viz. of Honor and precedency between the two Earls Lords of Parliament was a matter of Parliament and belonged to the Kings Highness and the Lords spiritual and temporal in Parliament by them to be decided and determined yet being there so commanded they shewed what they found upon examination and their Opinions thereupon Another Parliament in 31 H. 6. which Parliament begun the sixth of March and after it had continued sometime it was prorogued until the fourteenth of February and afterwards in Michaelmas Term anno 31 H. 6. Thomas Thorp the Speaker of the Commons House at the Suit of the Duke of Buckingham was condemned in the Exchequer in 1000 l. damages for a Trespass done to him The 14 of February the Commons moved in the Vpper House That their Speaker might be set at liberty to exercise his place The Lords refer this Case to the Iudges and Fortescue and Prisoit the two chief Iustices in the name of all the Iudges after sad consideration and mature deliberation had amongst them answered and said That they ought not to answer to this question for it hath not been used aforetime That the Iustices should in any wise determine the Priviledg of this High Court of Parliament for it is so high and mighty in its nature that it may make Laws and that that is Law it may make no Law and the determination and knowledg of that Priviledg belongeth to the Lords of the Parliament and not to the Iustices But as for proceedings in the lower Courts in such cases they delivered their Opinions And in 12 E. 4. 2. in Sir John Pastons case it is holden that every Court shall determine and decide the Priviledges and Customs of the same Court c. XXX Hillary Term 7 Jacobi Regis In the Star-Chamber Heyward and Sir Iohn Whitbrokes Case IN the Case between Heyward and Sir John Whitbroke in the Star-Chamber the Defendant was convicted of divers Misdemeanors and Fine and Imprisonment imposed upon him and damages to the Plaintiff and it was moved that a special Proces might be made out of that Court to levy the said damages upon the Goods and Lands of the Defendant and it was referred to the two chief Iustices whether any such Proces might be made who this Term moved the Case to the chief Baron and to the other Iudges and Barons and it was unanimously resolved by them That no such Proces could or ought to be made neither for the damages nor for the costs given to the Plaintiff for the Court hath not any power or Iurisdiction to do it but onely to keep the Defendant in prison until he pay them For for the Fine due to the King the Court of Star-Chamber cannot make forth any Proces for the levying of the
suam c. succidit for Custom hath fixed it to his Estate against the Lord and the Copyholder in this case hath as great an interest in the Timber Trees as he hath in his Messuage which he holdeth by Copy and if the Lord breaketh or destroyeth the House without question the Copyholder shall have an Action of Trespass against his Lord Quare Domum fregit and by the same Reason for the Timber Trees which are annexed to the Land and which he may take for the Reparation of his Copyhold Messuage and without which the Messuage cannot stand Trinit 40 Eliz. Rot. 37. in the Kings-Bench between Stebbing and Grosener The custom of the Mannor of Netherhall in the County of Suffolk was that every Copyholder might lop the Pollengers upon his Copyhold pro ligno combustibili c. And the Lord of the Mannor cut down the Pollingers being upon the Plaintiffs Copy-hold upon which he brought his Action upon the case because that the lops of the Trees in such case did belong to the Copyholder and they were taken by the Lord. See Taylors case in the fourth part of my Reports 30 and 31. and see 5 H. 4 2. Guardian in Knight-service who hath Custodiam terrae shall have an Action of Trespass for cuting down the Trees against the Heir who hath the inheritance Vide 2 H. 4. 12. A Copyholder brought an Action of Trespass Quare clausum fregit arbores succidit and see 2 E. 4. 15. A Servant who is commanded to carry goods to such a place shall have an Action of Trespass or Appeal 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. It after taking the goods the owner hath his goods again yet he shall have a general Action of Trespass and upon the evidence the damages shall be mitigated so is the better Opinion in 11 H. 4. 23. That he who hath a special property of the goods at a certain time shall have a general Action of Trespass against him who hath the general property and upon the evidence damages shall be mitigated but clearly the Baylee or he who hath a special property shall have a general Action of Trespass against stranger and shall recover all in damages because that he is chargeable over See 21 H. 7. 14. b. acc And it is holden in 4 H. 7. 3. That Tenant at sufferance shall have an Action of Trespass in respect of the possession and if the Defendant plead Not-guilty but he cannot make title 30 H. 6. Trespass 10. 15 H. 7. 2. The King who hath profits of the Land by Out-lawry shall have an Action of Trespass or take goods damage-feasants 35 H. 6. 24. 30 H. 6. Tresp 10. c. Tenant at will shall have an Action of Trespass 21 H. 7. 15. and 11 H. 4. 23. If a man Bayl goods which are taken out of his possession if the Baylee recover in Trespass the same shall be a good Bar to the Baylee 5 H. 4. 2. In a Writ of Waste brought against Tenant for life and assigned the Waste in cutting down of Trees the Defendant pleaded in Bar that the Plaintiff himself cut them and Culpeper the Serjeant of the Plaintiff objected against it that it should be no Plea because the Defendant had not any thing in the Freehold no more then a meer stranger and if a stranger had cut down the same Trees he should be chargeable in Waste Also in this case we should be at a mischief if we should not recover against him for if at another time he bringeth an Action of Trespass against us he shall recover damages against us for the cutting id est for the value of the Trees and yet it was holden by the Court that the same was a good Bar And it was said by the Court that the Plaintiff was not at any mischief in this case for in as much as the Defendant shall have advantage now to discharge himself of Waste against the Plaintiff upon this matter he shall be barred for ever of his Action of Trespass scil to recover the value of the Trees which was the mischief objected by Culpeper But without question he shall have an Action of Trespass Quare clausum fregit for the Entry of the Lessor and for the cutting of the Trees but he shall not recover the value of the Trees because he is not chargeable over but for the special loss which he hath scil for the loss of the Pawnage and of the shadow of the Trees c. See Fitz. Trespass ultimo in the Abridgment And afterwards the same Term Iudgment was given on the principal case for the Plaintiff XXXIV Easter Term 8 Jacobi In the Common-Pleas THe Parishioners of St. Alphage in Canterbury by custom ought to choose the Parish-Clark whom they chose accordingly The Parson of the Parish by coulor of a new Canon made at the Convocation in the _____ year of the King that now is which is not of force to take away any Custom drew the Clark before Doctor Newman Official of the Archbishop of Canterbury to deprive him upon the point of the right of Election and for other causes and upon that it was moved at the Bar to have a Prohibition And upon the hearing of Doctor Newman and himself and his Councel a Prohibition was granted by the whole Court because the party chosen is a meer temporal man and the means of choosing of him scil the custom is also meer temporal so as the Official cannot deprive him but upon occasion the Parishoners might displace him And this Office is like to the Office of a Churchwarden who although they be chosen for two years yet for cause they may displace them as it is holden in 26 H. 8. 5. And although that the execution of the Office concerneth Divine Service yet the Office it self is meer temporal See 3 E. 3. Annuity 30. He who is Clark of a Parish is removable by the Parishioners See 18 E. 3. 27 A gift in tayl was made of the Serjanty or Clarkship of the Church of Lincoln and there adjudged that the Office is temporal and shall not be tryed in the Ecclesiastical Court but in the Kings Court And it is to be known that the deprivation of a man of a temporal Office or place is a temporal thing upon which no Appeal lyeth by the Statute of 25 H. 8. but an Assise as in 4 Eliz. Dyer 209. The President of Magdalen Colledg in Oxford was deprived of the Bishop of Winchester their Visitor He shall not have an Appeal to the Delegates for the Deprivation is temporal and not spiritual but he may have an Assise and therewith agreeth the Book of 8 Ass Siracses Case But if a Dean of a Cathedral Church of the Patronage of the King be deprived before the Commissioners of the King he may appeal to the Delegates within the said Act of 25 H. 8. For a Deanry is a spiritual promotion and not temporal and before
Court. See 21 Eliz. Dyer 362. If Tenant in Socage dyeth seised in possession his Heir within the age of fourteen years he shall not sue Livery but shall have an Ouster le main una cum exitibus but otherwise it is if the Heir be of the age of fourteen years which is his full age for Socage and therewith agreeth 4 Eliz. Dyer 213. And two presidents were shewed which were decreed in the same Court by the advice of the Iustices Assistants to the Court. One in Trinity Term 16 Eliz. Thomas Stavely the Father enfeoffed William Strelley and Thomas Law of the Mannor of Ryndly in the County of Nottingham upon condition that they re-enfeoff the Feoffor and his Wife for their lives the remainder to Thomas Stavely son and heir apparent of tho Feoffor in Fee which Mannor was holden of Queen Elizabeth in Socage in capite and upon consideration of the saving in the Statute of 32 H. 8. next after the clause concerning Tenure in Socage in chief it was resolved That no Livery or Ouster le main should be sued in such case and the reason was because that the precedent clause giveth liberty to him who holdeth in Socage in chief to make disposition of it either by act executed or by Will at his free will and pleasure and before the said act no Livery or Ouster le main should be sued in such case and the words of the Saving are Saving c. to the King c. all his Right c. of primer seisin and relief c. for Tenure in Socage or of the nature of Tenure in Socage in chief as heretofore hath been used and accustomed But there was no use or custom before the Act that the King should have any primer seisin or relief in such case and the words subsequent in the said Saving depend upon the former words and do not give any primer seisin or relief where none was before Another president was in Pasc 37 Eliz. in the Book of Orders fo 444. where the case was that William Allet was seised of certain Lands in Pitsey called Lundsey holden of the Queen in Socage in chief and by Deed covenanted to stand seised to the use of his Wife for life and afterwards to the use of Richard his younger son in Fee and dyed his Heir of full age and all that was found by Office and it was resolved ut supra That no Livery or Ouster le main should be sued in that case but the doubt in the case at Bar was because that Henry the Feoffor had a Reversion in Fee which descended to the said VVilliam his eldest son XXI Trinity Term anno 7 Jacobi Regis The Case of the Admiralty A Bill was preferred in the Star-Chamber against Sir Richard Hawkins Vice Admiral of the County of Devon and was charged that one William Hull and others were notorious Pirats upon the High Seas and shewed in certain what Piracy they had committed the said Sir Richard Hawkins knowing the same did them receive abet and comfort within the body of the County and for bribes and rewards suffered them to be discharged And what offence that was the Court referred to the consideration of the two chief Iustices and the chief Baron who heard Councel of both sides divers days at Serjeants Inn. And first it was by them resolved that by the Common Law the Admirals ought not to meddle with any thing done within the Realm but onely with things done upon the Sea and that appeareth fully by the Statute of 13 R. 2. cap. 5. by which it appeareth that such was the Common Law in the time of King Edw. the third and therewith agreeth the Statute of 2 H. 4. cap. 11. and the Statute of 15 H. 2. cap. 3. That because the Admirals and their Deputies encroach to themselves divers Iurisdictions and Franchises more then they ought to have Be it enacted that all Contracts Pleas and Complaints and all other things arising within the bodies of the Counties as well by Land as by Water as also of Wreck of the Sea the Admiral Court shall not have any conusance power or jurisdiction c. Nevertheless of the death of a man and of Mayheme done in great Ships being in the main stream of great Rivers onely below the Bridges nigh to the Sea and not in other places of the same Rivers and to arrest Ships in the great Flotes for the great Voyage of the King and of his Realm and by the Statute of 2 H. 5. cap. 6. the Admirals of the King of England have done and used reasonably according to the ancient Law and Custom upon the main Sea See the Statute of 5 Eliz. cap. 5. And all this appeareth to be by the common Law and with that agreeth Stamford fo 51. And if a man be killed or slain within the Arms of the Sea where a man may see from the one part of the Land to the other the Coroner shall enquire of it and not the Admiral because that the Country may well know it and he voucheth 8 E. 2. Coron 399. So saith Stamford the same proves that by the common Law before the Statute of 2 H. 4. cap. 11. the Admiral shall not have Iurisdiction unless upon the High Sea See Pla. Com. 37. 6. If the Marshal holdeth Plea out of the Verge or the Admiral within the body of the County the same is voyd See 2 R. 3. 12. 30 H. 6. 6. by Prisoit 2. It was resolved that the said Statutes are to be intended of a power to hold Plea and not of a power to award execution scil de jurisdictione tenendi placiti non de jurisdictione exequendi For notwithstanding the said Statutes the Iudg of the Admiralty may do execution within the body of the County and therefore in 19 H. 6. 7. the case was W. T. at Southwark affirmed a Plaint of Trespass in the Court of Admiralty before the Steward of the Earl of Huntington against J. B. of a Trespass done upon the High Sea upon which issued a Citation to cite the said J. B. to appear before the Steward aforesaid at the common day then next ensuing directed to P. who served the said Citation at which day the said J. B. made default and the usage of the Court is that if the Defendant maketh default he shall be amerced by the discretion of the Steward to the use of the Plaintiff The which J. B. for his default aforesaid was amerced to twenty marks whereupon command was made to the said P. as Minister of the Court aforesaid to take the goods of the said J. B. to make agreement with the beforesaid W. T. by force of which he for the said twenty marks took five Cows and an hundred sheep in execution for the mony aforesaid in the County of Leicester And there it is holden by Newton and the whole Court that the Statutes restrain the power of the Court of Admiralty to hold Plea of a thing done
within the body of the County but they do not restrain the execution of the same Court to be served upon the Land for it may be that the party hath not any thing upon the Sea and then it is reason to have it upon the Land and if such a Defendant have nothing wherewithall to make agreement they of the Court have power to take the body of such a Defendant upon the Land in execution In which case these points were observed 1. Although that the Court of Admiralty is not a Court of Record because they proceed there according to the Civil Law see Brook Error 77. acc yet by custom of the Court they may amerce the Defendant for his default by their discretion 2. That they may make execution for the same of the goods of the Defendant in corpore Comitatus and if he hath not goods then they may arrest the body of the Defendant within the body of the County But the great Question between them was If a man committeth See this point resolved 8 Eli. Dyer per curiam which is omitted out of the printed Book Piracy upon the Sea and one knowing thereof receiveth and comforteth the Defendant within the body of the County if the Admiral and other the Commissioners by force of the Act of 28 H. 8. cap. 16. may proceed by Indictment and conviction against the Receiver and Abettor in as much as the offence of the Accessary hath his begining within the body of the County And it was resolved by them that such a Receiver and Abettor by the common Law could not be indicted or convicted because that the common Law cannot take conusance of the original Offence because that is done out of the Iurisdiction of the common Law and by consequence where the common Law cannot punish the principal the same shall not punish any one as accessary to such a principal And therefore Coke chief Iustice reported to them a Case which was in Suffolk in anno 28 Eliz. where Butler and others upon the Sea next to the Town of Laystaft in Suffolk robbed divers of the Queens subjects and spoyled them of their goods which goods they brought into Norfolk and there they were apprehended and there brought before me then a Iustice of the Peace within the same County whom I examined and in the end they confessed a cruel and barbarous Piracy and that those goods which then they had with them were part of the goods which they had robbed from the Queens subjects upon the High Sea and I was of opinion that in that case it could not be Felony punishable by the common Law because that the original act scil the taking of them was not any offence whereof the common Law taketh knowledg and by consequence the bringing of them into a County could not make the same Felony punishable by our Law and it is not like where one stealeth goods in one County and brings them into another there he may be indicted of Felony in any of the Counties because that the original act was Felony whereof the common Law taketh knowledg and yet notwithstanding I committed them to the Gaol until the coming of the Iustices of Assises And at the next Assises the Opinion of Wray chief Iustice and Periam Iustices of Assise was That for as much as the common Law doth not take notice of the original Offence the bringing of the goods stoln upon the Sea into a County did not make the same punishable at the common Law and thereupon they were committed to Sir Robert Southwell then Vice-Admiral of the said Counties and this in effect agrees with Lacies case which see in my Reports cited in Binghams case in the 2 Reports 93. and in Constables case C. 5. Reports 107. See the Piracy was Felony the Book of 40 Assis 25. by Schard where a Master or Captain of a Ship together with some Englishmen robbed the Kings sujects upon the High Seas where he saith that it was Felony in the Norman Captain and Treason in the Englishmen his companions and the reason of the said case was because the Normans were not then under the Obedience and Allegiance of the King of England for King John lost Normandy and for that cause Piracy was but Felony in the Norman but in the English who were under the Obedience and Allegiance of the King of England the same was adjudged Treason which is to be understood of Pettit Treason which was High Treason before and therefore in that case the Pirates being apprehended the Norman Captain was hanged and the English men were hanged and drawn as appeareth by the same Book see Stamford 10. And some objected and were of opinion That Treasons done out of the Realm might have bin determined by the common Law but truly the same could not be punishable but onely by the Civil Law before the Admiral or by Act of Parliament as all Foreign Treasons and Felonies were by the common Law and therefore where it is declared by the Statute of 25 E. 3. That adherence to the Enemies of the King within England or elsewhere is Treason the same shall be tryed by the common Law but where it is done out of the Realm the Offendor shall not be attainted but by Parliament until the Statute of 35 H. 8. cap. 2. although that there are Opinions in some Books to the contrary see 5 R. 2. Quare impedit c. XXII Trinit 7 Jacobi Regis In the Common-Pleas Pettus and Godsalves Case IN a Fine levyed Trinity Term anno quinto of this King between John Pettus Esq Plaintiff and Roger Godsalve and others Deforceants of the Mannor of Castre with the appurtenances c. in the County of Norfolk where in the third proclamation upon the Foot of the same Fine the said proclamation is said to have been made in the sixth year of the King that now is which ought to have been anno quinto of the King and whereas upon the Foot of the same Fine the fourth proclamation is altogether left out because upon the view of the proclamations upon Dorsis upon Record not finis ejusdem Termini per Justiciarias remaining with the Chyrographer and the Book of the said Chyrography in which the said proclamations were first entered it appeareth that the said proclamations were rightly and duly made therefore it was adjudged that the Errors or defects aforesaid should be amended and made to agree as well with the proclamation upon Record of the said Fine and Entry of the said Book as with the other proclamations in Dorsis super pedes aliorum finium of the same Term and this was done upon the motion of Haughton Serjeant at Law XXIII Mich. 7 Jacobi In the Court of Wards Sammes Case JOhn Sammes being seised of Grany Mead by Copy of Court Roll of the Mannor of Tollesham the great of which Sir Thomas Beckingham c. and held the same of the King by Knights service in capite Sir Thomas by