not of Tythes severed from the nine parts for that shall be in Case of a Praemunire and it appeareth to the Common Law See 16 H. 2. in the Case of Mortuary Vide Decretalia Sexti Lib. 3. tit de Decimis cap. 1. fo 130. Col. 4. Et summa Angelica fo 72. the same And that also appeareth by Linwood amongst the Constitutions Simonis Mephum tit de Decimis cap. Quoniam propter fo 139. 6. verbo Consuetudines Consuetudo ut non solvantur aut minus plene solvantur Decimae non valet and ibidem secundum alios Quod in Decimis realibus non valet Consuetudo ut solvatur minus decima parte sed in personalibus c. And ibidem Litt. M. verbo Integre faciunt expresse contra opinionem quorundum Theologorum qui dicunt sufficere aliquid dari pro Decima And that is the true Reason in both the said Cases scil de modo Decimandi de Limitibus Parochiorum c. that they would not adjudg according to their Canons and therefore a Prohibition lieth and therewith agreeth 8 E. 4. 14. and the other Boóks abovesaid and infinite presidents and the rather after the Statute of 2 E. 6. cap. 13. And also the Customs of the Realm are part of the Laws of the Realm and therefore they shall be tryed by the Common Law as is aforesaid See 7 E. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Iustices VI. Mich. 6 Jacob. in the Exchequer Baron and Boys Case IN the Case between Baron and Boys in an Information upon the Sur Stat. 2 E. 6. cap. 14. of Ingrossers Statute of 5 E. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer That the Defendant had ingrossed Apples against the said Act The Barons of the Exchequer held clearly That Apples were not within the said Act and gave Iudgment against the Informer upon the matter apparent to them and caused the same to be entered in the Margent of the Record where the Iudgment was given and the Informer brought a Writ of Error in the Exchequer chamber and the only Question was Whether Apples were within the said Act the letter of which is That whatsoever person or persons c. shall ingross or get into his or their hands by buying contracting or promise taking other then by Demise Grant or Lease of Land or Tythe any Corn growing in the Fields or any other Corn or grain Butter Cheese Fish or other dead Victual within the Realm of England to the intent to sell the same again shall be accepted c. an unlawful Ingrosser And although that the Statute of 2 E. 6. cap. 15. made against Sellers of Victual which for their great gain conspire c. numbereth Butchers Brewers Bakers Cooks Costermongers and Fruterers as Victualers yet Apples are not dead Victuals within the Statute of 5 E. 6. For the Buyers and Sellers of Corn and other Victuals have divers Provisoes and Qualifications for them as it appeareth by the said Act but Costermongers and Fruterers have not any Proviso for them also always after the said Act they have bought Apples and other Fruits by Ingross and sold them again and before this time no Information was exhibited for them no more then for Plums or other fruit which serveth more for delicacy then for necessary Food But the Statute of 5 E. 6. is to be intended of things necessary and of common use for the sustenance of man and therefore the words are Corn Grain Butter Cheese or other dead Victual which is as much to say as Victual of like quality that is of like necessary and common use But the Statute of 2 E. 6. cap. 15. made against Conspiracies to enhaunce the prices was done and made by express words to extend it to things which are more of pleasure then of profit So it was said That of those Fruits a man cannot be a Forestaller within this Act of 5 E. 6. for in the same Branch the words are any Merchandize Victual or any other thing But this was not resolved by the Iustices because that the Information was conceived upon that branch of the Statute concerning Ingrossers VII Hill 27 Eliz. in the Chancery HIllary Term the 27 of Eliz. in the Chancery the Case was thus One Ninian Menvil seised of certain Lands in Fee took a wife Fine Dower Relation and levyed a Fine of the said Lands with proclamations and afterwards was indicted and out-lawed of High Treason and dyed The Conusees convey the Lands to the Queen who is now seised the five years pass after the death of the Husband The Daughters and Heirs of the said Ninian in a Writ of Error in the Kings Bench reverse the said Attainder M. 26 and 27 Eliz. last past and thereupon the Wife sueth to the Queen who was seised of the said Land as aforesaid by Petition containing all the special matter scil the Fine with proclamations and the five years passed after the death of her Husband the Attainder and the reversal of it and her own title scil her marriage and the seisin of her Husband before the Fine And the Petition being endorsed by the Queen Fiat droit aux parties c. the same was sent into the Chancery as the manner is And in this case divers Objections were made against the Demandant 1. That the said Fine with proclamations should bar the Wife of her Dower and the Attainder of her Husband should not help her for as long as the Attainder doth remain in force the same was a bar also of her Dower so as there was a double bar to the Wife viz. the Fine levyed with proclamations and the five years past after the death of her Husband and the Attainder of her Husband of his Treason But admit that the Attainder of the Husband shall avail the Wife in some manner when the same is now reversed in a Writ of Error and now upon the matter is in Iudgment of Law as if no Attainder had been and against that a man might plead That there is no such Record because that the first Record is reversed and utterly disaffirmed and annihilated and now by Relation made no Record ab initio and therewith agreeth the Book of 4 H. 7. 11. for the words of the Iudgment in a Writ of Error are Quod Judicium praedict Errores praedict alios in Recordo c. revocetur admittetur c. quod ipsa ad possessionem suam sive seisinam suam as the case requireth tenementorum suorum praedictorum una cum exitibus proficuis inde a tempore Judicii praedict reddit praecept ad omnia quae occasione Judicii illius omisit restituatur By which it appeareth that the first Iudgment which was originally imperfect and erroneous is for the same Errors now adnulled and revoked ab initio and the party against whom the Iudgment was given restored to his possession and to
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
tenementorum per eundem B. dicto medio tempore percept sine dilatione haberi sacias Et qualiter hoc praeceptum nostrum fuerit execut constare facias c. in Octab. c. By which it appeareth That the Plaintiff in the Writ of Error shall have restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Error cannot have any remedy against any stranger but only against him who is party to the Writ of Error and therefore the words of the said Writ command the Sheriff to enquire of the Issues and Profits generally between the Reversal and the Iudgment with all which he who recovers shall be charged and as the Law chargeth him with all the mean profits so the Law gives to him remedy notwithstanding the Reversal against all Trespassors in the interim for otherwise the Law should make a construction by relation to discharge them who are wrong doers and to charge him who recovers with the whole who peradventure hath good right and who entereth by the Iudgment of the Law which peradventure is reversed for want of form or negligence or ignorance of a Clark And therefore as to that purpose the Iudgment shall not be reversed ab initio by a Fiction of Law but as the truth was the same stands in force until it was reversed and therefore the Plaintiff in the Writ of Error after the Reversal shall have any Action of Trespass for a Trespass mean because he shall recover all the mean profits against him who recovered nor he recovereth after shall be barred of his Action of Trespass for a Trespass mean by reason that his recovery is reversed because he shall answer for all the mean profits to the Plaintiff in the Writ of Error and therewith agreeth Brian Chief Iustice 4 H. 7. 12. a. Note Reader If you would understand the true sence and Iudgment of the Law it is needful for you to know the true Entries of Iudgments and the Entries of all proceedings in Law and the manner and the matter of Writs of Execution of such Iudgments See Butler and Bakers Case in the third part of my Reports good matter concerning Relations So as it was resolved in the Case at Bar Although that to some intent the Reversal hath relation yet to bar the Wife of her Dower by Fiction of Law by the Fine with proclamations and five years past after the death of her Husband when in truth she had not cause of Action nor any right or title so long as the Attainder stood in force should be to do wrong by a Fiction of Law and to bar the Wife who was a meer stranger and who had not any means to have any Relief until the Attainder was reversed And as unto the other point or Objection that the Demandant on the Petition ought to have an Office found for her it was resolved that it needed not in this case because that the title of Dower stood with the Queens title and affirmed it otherwise if the title of the Demandant in the Petition had disaffirmed the Queens title also in this Case the Queen was not entituled by any Office that the Wife should be driven to traverse it c. for then she ought to have had an Office to finde her title But in Case of Dower although that Office had been found for the Queen which doth not disaffirm the title of Dower in such case the Wife shall have her Petition without Office because that Dower is favored in Law she claiming but onely for term of life and affirming the title of the Queen See the Sadlers Case in the fourth part of my Reports And the case which was put on the other side was utterly denyed by the Court for it was resolved That if a man seised of Lands in Fee taketh a Wife of eight years of age and alieneth his Lands and afterwards the Wife attaineth to the age of nine years and afterwards the Husband dyeth that the Wife shall be endowed For although at the time of the alienation the Wife was not dowable yet for as much as the marriage and seisin in Fee was before the alienation and the title of Dower is not consummate until the death of her Husband so as now there was marriage seisin of Fee age of nine years during the Coverture and the death of the Husband for that cause she shall be endowed For it is not requisite that the marriage seisin and age concur together all at one time but it is sufficient if they happen during the Coverture So if a man seised of Lands in Fee take a Wife and afterwards she elopes from her Husband now she is barrable of her Dower if during the Elopement the Husband alieneth and after the Wife is reconciled the Wife shall be endowed So if a man hath issue by his Wife and the issue dyeth and afterwards Land descendeth to the Wife or the Wife purchaseth Lands in Fee and dyeth without any other issue the Husband for the issue which he had before the Discent or purchase shall be Tenant by the curtesie for it is sufficient if he have issue and that the Wife be seised during the Coverture although that it be at several times But if a man taketh an Alien to Wife and afterwards he alieneth his Lands and afterwards she is made a Denizen she shall not be endowed for she was absolutely disabled by the Law and by her birth not capable of Dower but her capacity and ability began onely by her Denization but in the other case there was not any incapacity or disability in the person but onely a temporary Bar until such age or reconcilement which being accomplished the temporary Bar ceaseth As if a man seised of Lands in Fee taketh a Wife and afterwards the Wife is attainted of Felony and afterwards the Husband alieneth and afterwards the Wife is pardoned and afterwards the Husband dyeth the Wife shall be endowed for by her birth she was not uncapable but was lawfully by her marriage and seisin in Fee entituled to have Dower and therefore when the impediment is removed she shall be endowed VIII Trinit 44 Eliz. In the Kings-Bench Sprat and Heals Case JOhn Sprat Libelled in the Spiritual Court against Walter Heal for Tythes Covin substraction of Tythes the Defendant in the Spiritual Court pleaded that he had divided the Tythes from the nine parts and then the Plaintiff made addition to the Libel in the nature of a Replication scil That the Defendant divided the Tythes from the nine parts quod praedict the Plaintiff non fatetur sed prorsus diffitetur yet presently after this pretended division in fraudem legis he took and carryed away the same Tythes and converted them to his own use and the Plaintiff thereupon obtained sentence in the Spiritual Court and to recover the treble value according to the Statute of 2 E. 6. cap. 13. And thereupon Heal made a
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
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
certain Lands in Hetherset and Windham in Norfolk and doth not say in two parts in three parts to be divided and yet it was good as well in the Declaration as in the Writ for without question the Writ is good de duabus partibus generally and so is the Register See 4 E. 3. 162. 2 E. 3. 31. 2 Assis 1. 10 Assis 12. 10 E. 3. 511. 11 Ass 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appeareth that by the intendment and construction of the Law when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part not divided As if two parts are demanded there remains a third part and when three parts are divided three remains a fourth part c. But when any demand is of other parts in other form there he ought to shew the same specialty as if one demandeth three parts of five parts or four parts of six c. And according to this difference it was so resolved in Jourdens Case in the Kings-Bench and accordingly Iudgment was given in this Term in the Case at Bar. XXVI Mich. 7 Jacobi Regis In the Common-Pleas Muttons Case AN Action upon the Case was brought against Mutton for calling of the Plaintiff Sorcerer and Inchantor who pleaded Not-guilty and it was found against him to the damages of 6 d. And it was holden by the whole Court in the Common-Pleas that no Action lieth for the said words for Sortilegium est rei futuri per sortes exploratio Et Sortilegus sive Sortilegista est qui per sortes futura praenunciat Inchauntry est verbis aut rebus adjunctis aliquid praeter naturam moliri whereof the Poet saith Carminibus Circes socios mutavit Ulyssis See 45 E. 3. 17. One was taken in Southwark with the Head and Visage of a Dead man and with a Book of Sorcery in his Mail and he was brought into the Kings-Bench before Knevet Iustice but no Indictment was framed against him for which the Clarks made him swear that he should never after commit any Sorcery and he was sent to prison and the Head and the Book were burned at Tuthill at the charges of the Prisoner And the ancient Law was as it appeareth by Britton that those who were attainted of Sorcery were burned but the Law is not such at this day but he who is convicted of such imposture and deceit shall be fined and imprisoned And it was said that it was adjudged That if one calleth another Witch that an Action will not lie for it is too general Et dicitur Latine Venefica But if one saith She is a Witch and hath bewitched such a one to death an Action upon the Case lieth if in truth he be dead Conjuration is derived of these words Con and juro Et propria dicitur quando multi in alicujus pernitiem jurant And in the Statute of 5 Eliz. cap. 16. it is taken for Invocation of any evil and wicked Spirits i. est conjurare verbis conceptis aliquos malos iniquos spiritus the same is made Felony But Witchcraft Inchantment Charm or Sorcery is not felony if not by them any person be killed or dyeth So that Conjuration est verbis conceptis compellere malos iniquos spiritus aliquod facere vel dicere c. But a Witch who works any thing by any evil spirit doth not make any Conjuration or Invocation by any powerful names of the Devil but the wicked spirit comes to her familiarly and therefore is called a Familiar But if a man be called a Conjurer or a Witch he shall not have any Action upon the Case unless that he saith That he is a Conjurer of the Devil or of any evil or wicked spirit or that one is a Witch and that she hath bewitched any one to death as is before said And note that the first Statute which was made against Conjuration Witchcraft Sorcery and Inchantment was the Act of 33 H. 8. cap. 8. and by it they were Felony in certain cases special but that Act was repealed by the Statute of 1 E. 6. cap. 12. XXVII Mich. Term 7 Jacobi Regis In the Court of Wards Sir Allen Percies Case SIr John Fitz and Bridget his Wife being Tenants for life of a Tenement called Ramshams the remainder to Sir John Fitz in tail the remainder to Bridget in tail the Reversion to Sir John and his Heirs Sir John and Bridget his Wife by Indenture demised the said Tenement to William Sprey for divers years yet to come except all Trees of Timber Oaks and Ashes and liberty to carry them away rendering Rent and afterwards Sir John dyed having issue Mary his daughter now the Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for seven years The Question was Whether Sir Allen having the immediate inheritance in the right of his Wife expoctant upon the Estate for the life of Bridget and also having the possession by the said Demise might cut down the Timber Trees Oaks and Ashes And it was objected that he might well do it for it was resolved in Saunders Case in the fifth part of my Reports fo 12. That if Lessee for years or for life assigns over his term or Estate unto another excepting the Mines or the Trees or the Clay c. that the exception is voyd because that he cannot except that which he cannot lawfully take and which doth not belong unto him by the Law But it was answered and resolved by the two chief Iustices and the chief Baron That in the Case at Bar the Exception was good without question because that he who hath the Inheritance joyns in the Lease with the Lessee for life And it was further resolved That if Tenant for life Leaseth for years excepting the Timber Trees the same is lawfully and wisely done for otherwise if the Lessee or Assignee cutteth down the Trees the Tenant for life should be punished in Waste and should not have any remedy against the Lessee for years and also if he demiseth the Land without exception he who hath the immediate Estate of Inheritance by the assent of the Lessee may cut down all the Timber Trees which when the term ended all should be wasted and then the Tenant for life should not have the Boots which the Law giveth him nor the pawnage and other profits of the said Trees which he lawfully might take But when Tenant for life upon his Lease excepteth the Trees if they be cut down by the Lessor the Lessee or Assignee shall have an Action of Trespass Quare vi armis and shall recover damages according to his loss And this case is not like to the said case of Saunders which was affirmed to be good Law for there the Lessee assigned over his whole interest and therefore could not except the Mines
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
same but they estreat the same into the Exchequer which hath power by the Law to writ forth Proces to the Sheriff to levy the same But if a man be convicted in the Star-Chamber for Forgery upon the Statute of 5 Eliz. that in that case for the double costs and damages that an English Writ shall be made directed to the Sheriff c. reciting the conviction and the Statute for the levying of the said costs and damages of the goods and chattels and profits of the Lands of the Defendant and to bring in the mony into the Court of Star-Chamber and the Writ shall be sealed with the great Seal and the Test of the King For the Statute of 5 Eliz. hath given Iurisdiction to the Court of Star-Chamber and power to give Iudgment amongst other things of the costs and damages which being given by force of the said Act of Parliament by consequence the Court by the Act hath power to grant Execution Quia quando aliquid conceditur ei omnia concedi videntur per quod devenitur ad illud And it was resolved That the giving of the damages to the Plaintiff was begun but of late times and although that one or two Presidents were shewed against this Resolution they being against the Law the Iudges had not any regard to them The like Resolution was in the Case of Langdale in that Court XXXI Hillary Term 7 Jacobi Regis In the Common-Pleas Morse and Webbs Case IN a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of November in the third year of the Reign of the King that now is in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conusance because that the place where is an Acre of Land which is the Freehold of the said William Sherington and for damage-feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land in parcel of Downfield and that he himself at the time and before the taking c. was and yet is seised of two yard Land with the appurtenances in Luddington aforesaid And that he and all those whose Estate he hath in the said two yards of Land time out of minde c. have used to have Common of pasture per totam contentam of the said place called the Downfield whereof c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep at certain times and seasons of the year as to the said two yards Lands with the appurtenances appertaining and that he put in the said two Oxen to use his Common c. And the Defendant did maintain his Avowry and traversed the Prescription upon which the parties were at issue and the Iury gave a special Verdict That before the taking one Richard Morse Father of the said John Morse and now Plaintiff whose Heir he is was seised of the said two yards Lands and that the said Richard Morse c. had the Common of Pasture for the said Cattel per totum contentum of the said Downfield in manner and form as before is alledged and so seised The said Richard Morse in the twentieth year of Queen Elizabeth demised to William Thomas and John Fisher divers parcels of the said two yards Lands to which c. viz. the four Buts of arable with the Common and intercommon to the same belonging for the term of four hundred years by force of which the said William Thomas and John Fisher entered and were possessed and the said Richard so seised dyed thereof seised by which the said two yards Lands in possession and Reversion descended to the said John Morse the now Plaintiff And if upon the whole matter the said John Morse now hath and at the time of the taking c. had Common of Pasture c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep c. as to the said two Acres of Land with the appurtenances belonging in Law or not the Iury prayed the advice of the Court. Note that this Plea began Trin. 5 Jacobi Rot. 1405. And upon Argument at the Bar and at the Bench it was resolved by the whole Court that it ought to be found against the Defendant who had traversed the Prescription For although that all the two years Lands had been demised for years yet the Prescription made by the Plaintiff is true for he is seised in his Demesn as of Fee of the Freehold of the two yards of Land to which c. And without question the Inheritance and Freehold of the Common after the years determined is appendant to the said two yard Lands and therefore clearly the issue is to be found against the Defendant But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in evidence 2. It was resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shall have Common Rateable and in such manner that the Land in which c. shall not be surcharged and if so small a parcel be demised which will not keep one Ox nor a Sheep then the whole Common shall remain with the Lessor so always as the Land in which be not surcharged 3. It was resolved That Common appendant unto Land is as much as to say Common for Cattel levant and couchant upon the Land in which c. So that by the severance of part of the Land to which c. so prejudice can come to the Ter-tenant in which c. 4. See the Case of in the fourth part of my Reports fo was affirmed for good Law and there is no difference when the Prescription is for Cattel levant and couchant and for a certain number of Cattel levant and couchant But when the Prescription is for Common appurtenant to Land without alledging that it is for Cattel levant and couchant there a certain number of the Cattel ought to be expressed which are intended by the Law to be levant and couchant XXXII Hill 7 Jacobi Regis In the Common-Pleas Hughes and Crowthers Case IN a Replevin between Robert Hughs Plaintiff and Richard Crowther Defendant which began Trin. 6 Jacobi Rot. 2220 The Case was that Charls Fox was seised of six acres of Meadow in Bedston in the County of Salop in Fee and 10 Octob. 9 Eliz. leased the same to Charls Hibbens and Arthur Hibbens for 60 years if the aforesaid Charls Hibbens and Arthur Hibbens should so long live and afterward Charls died and if the Lease determine by his death was the Question and it was adjudged That by his death the Lease was determined for the life of a man is meer collaterall unto the Estate for years otherwise it is if a
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
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