lawfully endowed and paid his first Fruits and Tenths Resolved by all the Court that it shall be presumed that the Vicaridge was lawfully endowed And that it is a dangerous President to examine Originalls of Impropriations and Endowments of Vicaridges for that they may perish And so it was decreed for the Plaintiff Hill 4. Jac. Regis Bedle and Beard Anno 31. Ed. 1. The King being seized of the Mannor of Kâ—mbolton to which the Advowson of the said Church was appendant by Letters Patents granted the said Mannor wish the Appâ—â—tenances to Humphry de Bohun Earl of Hereford in tayl generall Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson then full of an Incumbent to the Prior of Stonely and his Successors And at next avoydance they held In proprios usus Upon this Appropriation Concurrentibus his quae in jure requiruntur the Prior and his Successors held the same till the dissolution of the Monastery 27. H. 8. The said Mannor descended to Edward Duke of Buckingham as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was attaint of High Treason 14 H. 8. The King granted the said Mannor c. with all Advousons appendant c. to Richard Wingfield and his Heirs Males 16 H. 8. It was Enacted that the said Duke forfeit all Mannors c. Advousons c. which he had c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton as impropriate in Fee which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defendant got a Presentation of the Queen by Lapse pretending the said Church was not lawfully impropriate to the Prior. 1. For that Humphry who granted to the Prior had nothing in it nothing passing to his Ancestor by these words Manâ—rium cum pertinentiis 2. Or for that having no more but an Estate Tayl by his death his Grant was void But Resolved by the Lord Chancellor Ellesmere with the principal Judges and upon consideration of Presidents that the Plaintiff shall enjoy the Rectory for though by any thing which can now be shewn the Impropriation is defective yet it shall be now intended in regard of the antient and continual possession that there was a lawfull grant of the King to the said Humphry who granted in Fee so that he might lawfully grant it to the said Priory Omnia pâ—â—sumitur Solâ—mniter esse acta And all shall be presumed to be done which might make the antient Impropriation good And antient Grants and Acts shall not be drawn in question though they cannot be shewn for Tempus edâ—x rerum Letters Patents and Writings may consume be lost or imbezilled And therefore the Church was allowed to be rightfully impropriate and the rather in regard of the antient and long possession of the Owners of the said Rectory Mich. 4. Jac. Regis Case of Forfeiture by Treason Hill 43 Eliz. A Case was moved to all the Justices Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself and his Wife in Tayl. And after the said Statute the Husband was attaint of High Treason 31 H. 8. and dyed The Wife continued in possession and dyed their Issue enter and die and this descends to his Issue and all this found by Office The Question was if the Issue in Tayl or the King shall have the Land 1. And it was objected that the antient Estate Tayl cannot be forfeited because it was discontinued and such right of Action cannot be forfeited As was agreed in the Marquess of Winchesters Case 2. The Feoffor himself in this Case had not any right to the antient Estate Tayl it being extinguished by his Feoffment and therefore by his Attaint could not forfeit what he had not 3. The Issue in Tayl in remitted to that antient right which cannot be forfeited And the new Estate Tayl derived under the discontinuance which may be forfeited by the Statute 26 H. 8. cap. 13. is continued and by Act in Law viz. the discent and remitter avoided And the Kings Estate may be divested out of the King by remitter As if Tenant in Tail grant Land to the King c. and the King grant the Land to the Tenant in Tail for life the remainder to his Son and Heirs for life Tenant for life dies the Issue by and in Law is remitted and the Kings Estate is divested out of him This accords with Plow Com. 489. Nicols Case 1. Resolved that in this Case the Issue in Tail is barred for though right of Action cannot be given to the King by the 26 H. 8. yet when Tenant in Tail discontinues his Estate to the use of himself in Tail and after is attaint of Treason now by that Statute he doth not onely forfeit the new Estate in Tail but by this the right of the antient Estate is barred for ever And so note out of the said Statute a diversity between a naked right of Action not forfeitable and an Estate of Inheritance forfeiâ—able coupled with an antient right for which the Forfeiture of the possession is barred by the said Act And iâ— is not like the Case in Plow Com. of Remitter for this is no barre of an antient right Pasch 4 Jac. Regis Case at a Committee aoncerning Bishops At this Parliament held Pasch 4 Jac. Regis It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber that such Bishops as were made after the first day of the Session were not lawful Bishops 1. Admitting them Bishops yet the manner and form of their Seals Stiles Process and Proceeding in their Ecclesiastical Courts were not consonant to Law Because by the Statute 1 Ed. 6. cap. 2. it is provided That thenceforth Bishops should not be Elective but Donative by Letters-Patents of the King And for that at this day all Bishops were made by Election not Donation of the King therefore the saâ—d Bishops are not lawful 2. By the same Act it is provided That all Summons c. and Process in Ecclesiastical Courts shall be made in the King's Name and Stile and their Seals Engraven with the Kings Arms and Certificates made in the Kings Name It was therefore concluded Thâ—t the said Statute being still in force by Consequence all Bishops made after the Act 1 Jac. were not lawful Bishops And the Proceedings being in the Name of the Bishop makes them unlawful Quia non obserâ—ata forma infertur adâ—ullatio actus Upon Consideration had of these Objections by the Kings Commandment it was Resolved by Popham Chief Justice of England â—nd Coke Attorney of the King and after affirmed bâ— the Chief Baron and the other Justices Attendant to â—he Parliament that the said Act of the 1 Ed. 6. cap. 2. is not now in force being repealed annulled and annihlated by three several Acts of Parliament Any whereof being
all the purview of the Statute which is penned so precisely concerning persons should be all in vain by that evasion of Transcribing it as well against the express Letter of the Act as the intention of it And the Act ought to be expounded to suppress Extortion which is a great affliction and impoverishing of the Subjects 4. As this Case is he annexes the Probate and Seal to the Transcript ingrossed which the Plaintiff brought him so as the Case at Bar was with question And afterwards the Jury found for the Plaintiff And of such Opinion was Walmesly Warberton Daniel and Foster Justices the next Term in all things But upon Exception in Arrest of Judgment for not pursuing of the Act in the Information Judgment is not yet given c. Hill 6 Jac. Regis In the Common-Pleas In this Term a Question was moved to the Court which was this If Tenant in Burgage should pay aid to the King to make his eldest Son Knight And the Point rests upon this If Tenure in Burgage be a Tenure in Socage for by the antient Common-Law every Tenant in Knights Service and in Socage was to give to his Lord a reasonable Ayd to make his eldest Son a Knight and to marry his eldest Daughter and that was uncertain at Common-Law and also incertain when the same should be paid And this appears by Glanvil lib. 9. cap. 8. fol. 70. who wrote in the time of Henry the second Nihil autem certum statutum de hujus modi auxilâ—is dandis vel exigendis c. And in the beginning of the Chapter it is called rationabile auxilium because then it was not certain but to be moderated by Reason in respect of Circumstances The like appears by the Preamble of the Statute West 1. 3 Ed. 1. cap. 35. The said Act put those 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 whereby the Ayd it self became certain 2. That none might levy such Ayd to make his Son a Knight untill his Age of 15 years nor to marry his Daughter till her Age of 7 years And Fleta who wrote after that Act calls them rationabilia auxilia c. And by the Stat. 25 Ed. 1. where it is provided That Taxes shall be taken but by common consent of the Realm there is an Exception of the Antient Ayds which is to be intended of these Ayds But notwithstanding the said Act of West 1. it was doubted if the King were bound by it being not expresly named And therefore Ed. 3. in the 20 year of his Reign took â—n Ayd of 40 s. of every Knights Fee to make the Black Prince Knight and then nothing of Lands holden in Socage and to take away all question concerning the same it was confirmed by Parliament and after 25 Ed. 3 cap. 11. It is Enacted That reasonable Ayd to make the Kings eldest Son Knight and to marry his eldest Daughter shall be levyed after the form of the Stat. made thereof and not in other manner Now Littleton lib. 2. cap. 10. fol. 36. b. Burgage Tenure is where an antient Borough is whereof the King is Lord and those who have Tenements within the Borough hold of the King 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 Ayd It appeareth in the Register fol. 1 2. in a Writ of Right Lands held in Knights Service are said Quas clamat tenere perservitium unius Feâ—di militis And Socage Lands Quas clamat per liberum servitium unius cumini c. So F. N. B. 82. Rationabile auxilium de militibus et liberis tenentibus where Militibus distinguisheth Knights Service from Socage which is called libtris tenentibus But it appears by the Books of Avowry 26. and 10 H. 6. So Antient Demesne 11. It was Resolved by all the Justices in the Exchequor Chamber That no Tenure shall pay for a reasonable Ayd but Tenure by Knights Service and by Socage but not by Grand Sergeanty nor no other And 13 H. 4. 34. agrees to the Case o Grand Sâ—rgeanty And I conceive that Petit Sergeanty shall also pay Ayd for Littleton lib. 2. cap. 8. fol. 36. sayes That such a Tenure is but Socage in effect though Fitzh N. B. 83. a. avouch the contrary 13 H. 4. 34. And I conceive That he who holds a Rent of the King by Knights Service or in Socage shall pay Ayd according to the words in West 1. cap. 35. And though 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 Houses are buâ—l or if the House fall down may be made arable and plowed See Huntington Polydor Virgil and Hollinsheads Chron. fol. 35. 15 H. 4. Ayd was levyed by H. 1. 7. to marry Mawd his eldest Daughter to the Emperour viz. 3 l. of every Hide of Land c. See also The Grand Customary of Normandy cap. 35. there is a Chapter of Aydeâ— See also the Stat. made 19 H. 7. which beginneth thus Item Praefati Communes in Parliamento praed existent ex assensu c. concesserunt praefat Regi quand pecuâ—iae summam in loco duorum rationabilium auxilior suae Majestat de jure debit c. See Rot. 30 H. 3. Ex parte Reman Dom. Thâ—saur in scemino in auxilio nobis concess ad primogenitam filiam noâ—â—ram maritand And H. 3. had an Ayd granted by Parliament Ad Is abellam sororem suam Imperatori But that was of Benevolence Rot. 42 H. 3. ibid. 6. Monstrat R. Johanne le Francois Baro de Scaccario quod cum Dom. Rex non caperet nisi 20 s. de integro Feodo Mil. de auxilio c. Ibid. in Regno 2 Ed. 1 Rot. 3. de auxilio ad Militiam Which is meant of Knight of the Kings Son Note If one withâ—n Age be in Ward of the King he shall not be contributary to Ayd but his Tenants that hold of him shall as appears by that Record Ibid. 30 Ed. 1. Ibid. T. R. 34 E. 1. Ibid. Hill 4 H. 4. Rot. 19. de rationabili auxilio de Will. Dom. Roos The like M. Rot. 5 H. 4. Rot. 33. Lincoln Roâ— 34. Lincoln Rot. 35 Lincoln Tr. R. 5 H. 4. Rot. 2. Kanc. Rot. 3. Kanc. Rot. 5. Kanc. See ibid. R. 21 Ed. 3. Rot. Cantab. â—e auxilio adfilium Regis primogenitâ—m faciend per Episcopum EEliens See also ibid. 20 Ed. 3. Rot. 13 14. de auxiliendo ad primogenitum filium Râ—gis Militem faciend By all which before cited it appeareth that Tenure in Burgage is subject to the payment of
Service Tenant Richard Hulme dyed after whose death 31 H. 8. it was found that he dyed seized of the said Mesnalty and that the same descended to Edward his Son and Heir within Age and found the Tenure aforesaid c. And during nonagâ— Robert Male dyed seized of the said Tenancy peravail and that the same descended to Richard his Son and Meir as was found by Office 25 H. 2. 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 Hulme then in Ward of the King as of his Mesnalty for which the King seized the Ward of the Heir of the Tenant And afterwards Anno quarto Jacobi Rogis nunc after the death of Richard Male the lineal Heir of Robert Male by another Office it was found that Richard dyed seized of the Tenancy and held the same of the King as of his Dutchy c. his Heir within age Whereupon Richard Hulme Cozen and Heir of the said Richard Hulme preferred a Bill to be admitted to traverse the Office found 4 Jac. Regis And the Question was Whether the Office found 35 H. 8. be any Estoppel to the said Hulme or if that the said Hulme should be first driven to Traverse that And it was objected That he ought first to traverse the Office of 35 H. 8. as in the Case 26 E. 65. And that the first Office shall stand as long as the same remaines in force To which it was Answered and Resolved by the two Chief Justices and Chief Baron and Court of Wards That the finding of an Office is not any Estoppel for that is but an Inquest of Office and the party grieved shall have a Traverse to it 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 fueâ—h a general Livery it is holden 46 Ed. 3. 12. by Mowbray and Persey that he shall not after adde that the Land is not holden of the King But that is not any Estoppel to the Heir himself and shall not conclude his Heir for so saith Mowbray himself expresly 44 Ass pl. 35. See 1 H. 4. 6. b. So 33 H. 6. 7. And there is no Book that saith that the Estoppel shall endure longer than his life but that is to be intended of a general Livery but a special Livery shall not conclude one And if a Jury find falsly in a Tenure of the King the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King in Socage c. the Heir may traverse the last Office for by that he is grieved and he shall not be driven to traverse the first Office And when the Father sues Livery and dyes the Conclusion is executed and past as is aforesaid And note there is a special Livery but that proceeds of the King's Grace and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda or to the Heir within age as appears 21 E. 3. 40. And then is general and shall not comprehend any Tenure as the several Livery doth and therefore it is not any Estoppel without question See the 33 H. 8. cap. 22. 23 Eliz. Dyer 177. 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 comes to the Possession by a false Office or otherwise if it appears the King have any other Right to have the Land there none shall traverse the Office or Title of the King because the Judgment in the Traverse is Ideo consideratum est quod manus Domini Râ—gis amoveantur c. See 4 H. 4. fol. 33. in the Earl of Kents Case c. Mich. 7 Jacobi Regis Note The Priviledge Order or Custom of Parliament either of the Upper-House or House of Commons belongs to the Determination of the Court of Parliament and this appeareth by two notable Presidents 1. The one at the Parliament holden in the 27 H. 6. There was a Controversie moved in the Upper-House between the Earles of Aâ—undel and Devonshire for their Seats Places and Pre-eminences of the same to be had in the King's Presence as well in Parliament as in Councels and elsewhere The King by the Advice of Lords Spiritual and Temporal committed the same to certain Lords of Parliament who not having leisure to examine the same by the said Lords Advice referred it to the Judges of the Land to hear see and examine the Title c. and to report what they conceive herein The Judges reported as followeth That this matter viz. of Honour and Pre-eminency between the two Earles Lords of Parliament was a matter of Parliament and belonged to the King and his Lords in Parliament to be decided Yet being so commanded they shewed what they found upon Examination and their Opinions thereon Another Parliament 31 H. 6. 6th of March begun and after some continuance was prorogued to the 14 of February and afterwards in Michaelmas Term the same 31 H. 6. Thomas Thorpe Speaker of the Commons House was condemned in the Exchequer in 1000 l. Damages at the Duke of Buckingham's Suit for a Trespass done to him The 14th of Feb. the Commons mâ—ved in the Upper-House that their Speaker might be set at liberty to exercise his Place c. The Lords refer it to the Judges and Fortâ—scue and Prisoit the two Chief Justices in the Name of all the Judges answer'd That they ought not to consider this Question c. but it belongeth to the Lords of the Parliament and not to the Justices But as to their Proceedings in the Lower-Courts in such Cases they deliver'd their Opinions See 12 E. 4. 2. Hill 7 Jac. Regis In Cam. Stâ—ll Heyward and Sir John Whitbrook's Case In the Case between Hyward and Sir John Whitbrook in the Star-Chamber the Defendant was convicted of divers Misdemeanours and Fine and Imprisonment imposed on him and Damages to the Plaintiff And it was moved that a special Process might be made out of that Court to levy the said Damages upon the Lands and Goods of the said Defendant And it was referred to the two Chief Justices whether any such Process might be made who this Term moved the Case to the Chief Baron and the rest of the Judges and Barons and it was unanimously by them all Resolved That no such Process could or ought to be made neither for the Damages nor for the Costs given to the Plaintiff the Court having no such power but onely to keep the Defendant in Prison till he pay them For for a Fine due to the King they can make no Process to levy it but they estreat it into the Exchequer which hath power by Law to write forth Process
THE RESOLUTIONS Of the JVDGES upon the several STATUTES Of Bankrupts As also The like Resolutions Upon 13 Eliz. and 27 Eliz Touching Fraudulent CONVEYANCES By T. B. Esq LONDON Printed for T. Twyford and are to be sold by Hen. Twyford and other Booksellers 1670. Pasch 4. Jacobi Regis Ford and Sheldon's Case upon Information in the Exchequer for the King THomas Ford a known Recusant bâ—fore the 23 of Eliz. for money lent to Sheldon some before and some after the said 23 Eliz. took Recognizance in the Names of others and also a Rent-charge to them in Fee with a Clause of Redemption by Deed the Condition of the Recognizance being for performance of the Covenanss in the Deeds and afterward was made the Statute of the 28 Eliz. which was That as often as any Failer was made in the payment of 20 l. a Month that so often the Queen by Process out of the Exchequer might take and enjoy all the Goods and two Parts c. And after the said Act Ford lent the several Sums of Money and took the Securities as aforesaid amounting in all to 21000 l. which being to Ford's use were all forfeited Afterwards 41 Eliz. was Convict of Recusancy and did not pay the 20 l. a Month If the King should have the Bâ—nefit of these Recognizances and Securities was the Qâ—estion 1. Upon Debate it was objected by Ford's Councel That the Recognizances had not been Forfeited though they had been made in Ford's Name the Statute speaking onely of Goods which doth not include Debts As if the King grant all the Goods of J. S. coming to him by Attainder the Patentee shall not have Debts And a Penal Law shall not be extended by Equity Obj. 2. That three Recognizances are not within the Intention of the Act being Savers of the Realty and acknowledged to perform Covenants as to the Rent-charge Ob. 3. No Fraud was in the Case And then no Statute being in this Case the Common-Law gives no benefit to the King As if Cestuy que use had been Attaint of Treason the Use being but a Trust could not be forfeited to the King And it not a Use A multo fortiori a meer Trust Ob. 4. What Forfeiture accrues to the King in this Case must be by force of the words Goods in the Statute which cannot be Ford having no Goods but a meer Trust Also one Recognizance was taken in the Names of others before the Stature and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use Resolved 1. By all the Barons and Popham Chief Justice of England and divers other Justices that Personal Actions are as well included within this Word Goods in an Act of Parliament as Goods in Possession But because by Law things in Action cannot be granted over therefore by General Grant without special words can never pass And where the Statute saith Shall take seize and enjoy all the Goods and two parts c. the King may well enjoy a Debt due to a Recusant and by Process out of the Exchequer Levy it and so take and seize refers to Goods and two Parts of Lands in Possession Resolved 2. That it was Originally for the Loan of Money and both the Recognizance and Annuity were to secure the said Money And Recognizances fotfeited are but Chattels Personal Resolved 3. There was Covin apparent for he being a Recusant always as aforesaid and so chargeable to the King his taking the Recognizances in the Name of others shall be Construed with an Intent to prevent the King of his Forfeiture And so shall all Recognizances taken in others Names after the said Act be presumed to be taken As to Ceâ—â—uy que use who neither hath Jus in Re nor Jus ad Rem true it is he cannot Forfeit but an Act done to defraud the King of his lawful Duty the King shall not be barred thereof per obliquum if the Act was made de directo And for this If a man outlawed buy Goods in the Names of others the King shall have them notwithstanding So if an Accountant to the King purchase Lands in others Names yet the King shall sâ—ze those Lands for Money due to him And this appears by Walter Cherton's Case Trin. 24. Ed. 3. Rot. 4. in Scaccario for Reâ— fallere non vult falli autem non potest See another President Trin. 24. Ed. 3. Pot. 11. Resolved 4. Noâ—resert Whether the Duty do accâ—ue to the King by the Common-Law or by the Statute And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use And though Ford was not Convict till the 41 of Eliz. that is not material for he was subject to a Forfeiture before Pasch 4 Jac. In Chancery 27 Junii 29 Eliz. The Case between the Lord St. John of Bletso and the Dean of Gloucester The Lord St. John brought a Quare Impedit in the Common-Pleas against the Defendant for the Church of Penmark in the County of Glamorgan which Suit was staid by Aid prayer and the Record removed into the Chancery The Plaintiff moved for a Procedendo and upon Oyer of Cause before Sir Thomas Bromley Lord Chancellor in the presence of Sir Gilbert Gerrard Master of he Rolls and Shute and Windham Justices and Popham Attorney and Egerton Sollicitor of the Queen the Plaintifâ— shewed a Gift in Tail of the said Advowson made to his Anc stor in 18 R. 2. and a Verdict for the same in 12 H. 8. and a presentation by his Grandfather to the said Church of a Clerk that was admitted instituted inducted and had possession divers years with other matters to prove the Plaintiffs Tâ—tle yet for that the Defendant and those from whom he claimes had time out of mind possessed the said Parsonage as Impropriate And for that it will be a dangerous President to all Owners of Impropriations It was Resolved by the Court of Chancery by the advice of the Justices and Councel Learned by the Queen aforesaid That no Procedendo in loquela be granted Vide Ridley fol. 153 154. the beginning of Appropriations and Annuities to be discharged of Tythes Vide ibid. 155. That the Saxon Kings appropriated eight Churches to the Monastery of Croyland Trin. 37 Eliz. In the Exchequer Chamber Crimes and Smith The Abbot of Sulby held the Parsonage of Iubbenhâ—m in Leicestershire to his proper use which as impropriate came to H. 8. by the dissolution of Monasteries 31 H. 8. who in the 37th year of his Reign granted it in Fee-Farm under which Grant the Plaintiff claimed The Defendant obtained a Presentation of the Queen and to destroy the said Impropriation shewed the Original Instrument of it 22 Ed. 4. with Condition in it That a Vicaridge should be competently endowed which was alledged never to be done But for that the Rectory was reputed and taken to be appropriate and a Vicar presented admitted instituted and inducted as a Vicar
in force it makes that Act of 1 Ed. 6. that it cannot stand Quia Leges Posteriores Priores contrarias abrogant And by the Act of the 25 H. 8. cap. 20. Is set forth the manner of Election and Consecration of Archbishops and Bishops And also for the making and execution of all things which belongs to their Authority within which words the Stile and Seal of their Courts and the manner of their Proceedings are included Which Act of 25 H. 8. is revived by 1 El. cap. 1. and consequently that of 1 Ed. 6. cap. 2. is repealed It appears by our Books if a Deacon or Priest take a Wife their Marriage is voidable not void for they had not vowed Chastity Otherwise of a Monk or a Nun. And this appears 5 Ed 3. Title Nonability 26. 19 H. â— Title Bastardy 33. 21 H. 7. 39. 6. Mich. 4. Jac. Regis Case of the Stannaries It was Resolved this Term in the Star-Chamber That the King had not the Emption of Tin in Cornwal by his Prerogative for Stanni nec plumbi fodina c. or other sase Mineb belong not to the King by his Prerogative but to the Subject Owner of the Land But the Emption of Tin in Cornwal belongs to the King as an antient Right and Inheritance for though now a Reason cannot easily be rendred of things done time out of mind yet it may well be that all the Land in that County was the King Demesne and upon Grant of the Land the King reserved the Mines to himself These Tin Mines being of great Antiquity as appears Ex Diodoro Siculo Et certo certius est That all the Land in England is derived mediately or immediately from the Crown and therefore such a Profit may have a reasonable Commencement Usage also allowing it to the King for all Cornwal was within the King's Forest which by King John was disafforested as by Cambden appears And it is evident that before 33 Ed. 1. all the Tin in Cornwal and Devon also was the Kings whoever owned the Land And this is proved by divers Records and by an antient Charter of King John among the Bishop of Exeters Records In haec verba Johannes Dei Gratia Rex Angliae c. Omnibus Bâ—llivis salutem Sciatis quod intuitu Dei pro salute animae nostrae c. dedimus c. Deo Ecclesiae Beati Petri Exon venerabili Patri Simoni Exon. Episcopo successoribus c. decimam de antiqua firma Stanni in Com. Devon Cornub. Habendum sibi successoribus c. cum omnibus libertatibus liberis consuetudinibus ad eam pertinentibus per manus illius vel illorum qui stannaria habuerint in custod c. Rex Roberto de Courtney salutem Mandâ—mus vobis quod sine dilatione difficultate aliqua habere facietis Dominae Johannae Reginae matri nostrae stannaria Com. Devon c. Paten 1 H. 3. H. 4. Rex concessit Johanni filio Richardi stannaria in Cornubia reddendo 1000 marks 4 H. 3. Fines 5 H. 3. Rex c. Sciatis quod concessimus Richardo dilecto fratri nâ—stro stannariam nostram Cornubiae cum pertinen Prohibiting Tin to be transported without the said Richards Licence 10 H. 3 M. 9. See also 10 Ed. 2. Inqui. 2. Nu. 29. There are two several Charters both dated 10 April 33 Ed. 1. One ad emendationem stannariarum nostrarum in Cornub. The other Ad emendationem stannariarum nostrarum in Devon That of Cornwall hath these word Concessimus eisdem stannatoribus quod fodere possint stannum et turbus ad stannum fundendum ubisque in terris nostris et vastis nostris et aliorum quorumcunque in Com. praedict et Aquas et aquarum cursus divertere ubi et quoties opus fuerit c. ad sundaturam stanni sicut Antiquitus coâ—suâ—vit sine impedimento nostro seu aliorum quorumcunque Ac quod omnes stannatores nostri praed totum stannum suum ponderatum c. licitè vendere possint cuicunque voluerint faciendo nobis et haeredibus nostris Cunageum et alias Consuetudines debitas nisi nos vel haerede nostri stannum illum emere volumus This was confirmed 4 Ed. 2. And also 1 17 Ed. 3. De Advisamento consilii nostri ordinavimus quod stannum in Com. Cornub. et Devon ad opus nostrum capiatur pro defensione regni nostri c. Et ad partes marinas celeriter mittatur c. Ita quod hominibus quibus stannum illum capi contigerit de pretio ejusdem stami ad certos terminos solvend sufficiens securitas per nos fiat Assignavimus vos c. ad capiend ad opus nostrum totum stannum in Com. praed Cunitum et etiam Cuniend cum cunitum fuerit with Authority to take Carriages and Commandment to the Sheriff to pay for the same Rot. Amlâ—yne An. 12. R. 2. part 1. Edward the black Prince grant and the King 21 E. 3. confirmed to Tydman of Lymberge Cunageum Stannariae c. nec non emptionem totius Stanni c. infra c. pro fine mille marcarum et reddendo 3500 marcas The like done to one Brockhouse 7 Ed. 6. The Charter of 33 Ed. 1. was confirmed 8 R. 2. 1 Ed. 4. 3 H. 7. The 11 H. 7. a certain weight and measure was ordained to be used through England yet the weights belonging to the Carriage of Tin were excepted in that Statute The Stile of the Court of Stannaries is Magna Curia Domini Regis Ducatus sui Cornub. apud Cockerenton in Com. Devon Johanne Comite Bedford Custode stannar dicti Domini Regis aut Reginae in dicto Com. Devon By which it appears that all the Tin belonged to the King For the Antiquity of Tin Mines in Cornwall see Camdâ—n in Cornwell 121. And Diodorus Siculus L. 5. c. 8. fo 142. 6. Upon which it was resâ—lved 1. That the King hath all the Tin as well in the Subjects Lands as his own 2. It is absurd for the King to reserve Emption of his own Tin 3. The King grants Stannatoribus divers liberties which are enjoyed by the Tinners as well in the Subjects Lands as the Kings own In the Session of Parliament hâ—ld in Decemb An. 4. Jac. Regis Case of the Kings Prerogative in Saltpeter All the Justices viz. Popham Chief Justice of England Coke Chief Justice of the Common Pleas. Fleming Chief Baron Fenner Searle Yelverton Williams and Tanfield Justices met at Sergeants Inne to consult what Prerogative the King had in digging and taking of Saltpeter to make Gunpowder by the Law And upon conference between them these points were resolved by them all 〈◊〉 voce 1. That in as much as Gunpowder concerns the defence of the Realm and insomuch as Saltpeter whereof Gunpowder is made is within the Realm the King shall not be driven to buy it but may take it according to the Limitations following 2. That
though the King cannot take the Trees of his Subject growing upon his Freehold nor Gravel in the Inheritance of his Subject for reparation of his houses as 11 H. 4. 28. Yet 't is resolved that he may dig for Saltpeter because the Kings Ministers who dig for the same are bound to leave the Inheritance of the Subject in as good plight as they found it which they could not do if they should cut the Timber growing which would be to the Subjects disinherison The Case of Gravel for reparation of the Kings Houses may not be compared to this for Saltpeter extends to the defence of the whole Realm not so the reparation on of the Kings Houses 13 H. 4. The King may charge for Murage of a Town And so for Portage but not for making a Wall about his own House When Enemies invade the Realm it is lawful to come upon any Land adjoyning to the invaded Coast to make Trenches or Bulworks 8 Ed. 4. 23. And in such Cases they may dig for Gravel 3 H. 8. fo 15. And in this Case the Rule is true Princeps et republica ex justa causa possunt rem mean auferre 3. Resolved That the taking of Saltpeter is a purveyance of it for the making of Gunpowder for the necessary defence of the Realm And therefore is an incident inseparable from the Crown and ought to be taken onely by the Kings Ministers and not converted to any other use then the defence of the Realm And 't is not like Silver or Gold Mines for there the King hath Interest in the Mettall and may dig Quia quando lex alicui concedit aliquid Concedere videtur id sine quo res ipsa esse non potest Vide Plow Com. in le Case de Mynes so the King may dig for Treasure Trove eadem ratione 4. The Ministers of the King cannot undermine weaken or impair any the Walls of Foundations of any Houses or Buildings whatsoever Nor dig in the Flore of a Mansion-house which serves for the Habitation of a man because it is his place of refuge and defence There are two notable Presidents that the King by his Prerogative had power to prohibit Depopulation and provide for Habitation The one in the 43 Ed. 3. Rot. claus in turri num 23. provillade Southampton The other An. 21. R. 2. in dorso claus par 1. N. 15. Neither may the Kings Ministers dig in any Barn-floore used for Corn Hay c. but they may dig in the floores of Stables and Oxehouses so that they leave room for the Horses and other Cattel of the Owner and put it in convenient time into as good plight as they found it Also they may dig in Cellars and Vaults and and Mud-walls being not Walls of a Mansion-house and in the ruines and decayes of any Houses or Buildings 5. They ought to make the places where they dig as commodious to the Owner as before 6. They may work in the possession of the Subject but betwixt Sun-rising and Sun setting 7. They may not place any Furnace or other Vessels in any Subjects House without consent nor so near it as to prejudice the same 8. They are not to stay over long in a place nor to return thither again in a long time 9. Resolved That the owner of the Land cannot be restrained from digging and making Saltpeter for the King hath no Interest in it the property is in the owner of the Land Before the 31 Eliz. no King or Queen of this Realm granted any Licence for taking Saltpeter but in that 31 year there were two the one to George Constable Esque and the other generall to George Evelin Richard Hills and John Evelin And after Scilicet 18 Octob. 2. Jacob. Commission was granted to Evelin and others to take Saltpeter c. So that there were but three Licences ever made Case of Treason In this very Term one George Leake a Chancery Clark had upon an ordinary piece of Parchment by great deceit fixed with a kind of Glew another Parchment so thin that it appear but one piece And upon the thin piece he writ by good Warrant a Li ense which brought to the Chancellor was sealed with the Great Seal After the George took the thin piece upon which the writing was from the other to which the Seal was fixed and then all was blank with the Great Seal annext upon which blank the said George writ a Grant of the King of certain Lands and what Offence this was was the Question And after a long debate upon the 25 Ed. 3. 2 H. 4. 25. Stamford l. 1. fol. 3. 40 Ass pla 33. 37 H. 8. Title Treason 2 H. 4. Claus 42 Ed. 3. memb 8. in dorso where the Case was That King Richard the First by his Charter granted divers Lands and Liberties Abbati de Bruera in which the Abbot rased out this word Fittetrida and instead of it writ est leigh and upon shewing it obtained a confirmation of it from King Ed. 3. And an allowance of it in Banco R. And for this Offence the Abbot was called before the King and Council in the Star-Chamber where the Abbot being Convict it was part of the Sentence That the Charter confirmation and allowance of it should be brought in to be cancelled where note 1. The Antiquity of the Star-Chamber being then a Court. 2. That the rasure was not any Counterfeit of the Great Seal for if the Offence had been High Treason it should not have been determined before the King and Council 3. That Spiritual Persons were then punishable before Temporal Judges 4. That if there be a rasure of a Deed between Subject and Subject in a place material all the Deed becomes naught so if a Patentee rase his Heirs Patents in a place material Thence concluded That if the rasing of a word in the Kings Patent be not Treason then the rasing of two or three or all the words of the Patent and writing a new Grant is not Treason By the Statute of the 25 Ed. 3. it is provided That because many other Cases of like Treason might happen in time to come which men cannot think or declare at present That if another Case suffered Treason and not specified in the Act shall come before any of the Justices they shall stay without going to Judgment of Treason untill the Case be shewen before the King in Parliament 1. That though a Case happen like to the Cases of Treason mentioned in the said Act yet that the Judges ought not to judge it Treason but it ought to be declared in Parliament 2. That when a particular Case was adjudged High Treason as the Case of murdring an Embassador of a King Et Legatos violare contra jus Gentium est Afterwards George Leake upon Examination before the chief Justice of England made a clear Confession of of all the manner and circumstances of the Fact as aforesaid whereupon Two Questions were moved 1. Whether this Offence
were High Treason or no And in this the Justices were divided my self and divers others holding That this Act was not Treason but the chief Justice and divers others were against us 2. If it be High Treason then whether he may be indicted generally for the Counterfeiting of the Great Seal or else the special Fact must be expressed By reason of diversity of Opinions Râ—spectuatur vid. Fleta lib. 1. cap. 22. Item crimen falsi dicitur cum quis illicitus cui non fuerit ad haec data authoritas de sigillo Regis rapto vel invento et brevia Carteria vide le Attainder de Elizabeth Barton Edw. Bocking by Parliament c. 25. H. 8. c. 12. Hill 24 Eliz. In the Exchequer A Merchant brought eighty weigh of Bay-Salt by Sea to a Haven in England and out of the Ship sold 20 weighs and discharged them to another Ship wherein they were transported being never actually put on shore and for the residue viz. 60 weigh he agreed for the Custome and put them upon Land and now the dâ—nbt was 1 Eliz. cap. 12. for the words of the Statute concerning Exportation sent from the Wharfe Key or other place on the Land and concerning Importation taken up discharge and lay on Land If in this Case the said 20 weighs which alwayes were waterborn and never touched the Land ought to pay Custome as well inwards as outwards And it was Resolved That in both the Cases Custome ought to be paid and forasmuch as no Custome was paid It was Resolved That the Goods were forfeited Note No Act of Parliament can bind the King from any Prerogative which is sole and inseperable to his person but that he may dispence with it by a non obstante as his Soveraign Power of Commandines his Subjects to serve him for the publick Weal See 23 H. 6. cap. 8. 2 H. 7. 66. 13 R. 2. Parl. 2. cap. 1. See also 4 H. 4. cap. 31. Coke l. 2. fol. 69. But in things which are not incident solely and inseparably to the person of the King but belongs to every Subject and may be severed there an Act of Parliament may absolutely bind the King As if an Act of Parliament do disable any Subjects of the King to take any Land of his Grant or any of his Subjects as Bishops as it is done by the Statute 1 Jac. cap. 3. to Grant to the King this is good for to grant or take Lands or Tenements is common to every Subject Hill 4. Jac. Regis Care of High Commissioners If they have Power to Imprison Mich. 4 Jac. post prand There was moved a Question amongst the Judges and Sergeants at Sergeants Inn If the High Commissioners in Ecclesiastical Causes may by force of their Commission imprison any man or not First Resolved by all That before the Statute of the first of Eliz. the King might have granted a Commission to hear and determine Ecclesiastical Causes yet the Commissioners ought to proceed according to the Ecclesiastical Law allowed within the Realm Vide Caudrye's Case 5 Report Then all the Question rests upon the Act 1 Eliz. which hath three Branches 1. Such Commissioners have power to exercise Jurisdiction Spiritual and Ecclesiastical 2. By force of Letters-Patents they have power to visit reform c. all Heresies c. which by any manner of Spiritual or Ecclesiastical Power c. can or lawfully may be Reformed c. So that these Branches limit the Jurisdiction 3. That after such Commission delivered to them shall have power by vertue of this Act and the said Letters-Patents to exercise c. all the Premisses c. according to the Tenor c. This Branch gives them Power to execute their Commission But it was Objected That this Branch gave no power to the Queen to alter the Proceedings of the Ecclesiastical Law or to prescribe what manner of proceedings or punishment concerning the Lands Goods or Bodies of the Subject And this appears by the Title of the Act Restoring the intent being to make Restitution not any Innovation Vide a notable Case adjudged in this Point Hill 42. El. â—o 389. as to Imprisonment Smith's Case for at the last Consultation was granted And at last by the better Opinion as to things committed to them by Commission they may put Fine and Imprisonment By the 3 H. 7. cap. 14. 't is Ordained where Women as well Maids as Widows and Wives having substance c. for the lucre of such substance be taken by Misdoers contrary to their Wills and after marryed c. or defiled That what person henceforth so taketh c. against her will c. such taking c. to be Felony And the Misdâ—ers c. to be reputed as Felons Upon this great question was moved 4 5 Phil. Mar. in the Star-Chamber If the Eloym ent against her without Mariage or Carnal Copulation be Felony or no And the Opinion of Brook and some other of the Justices was that It was Felony But Sanders Lord Chief Justice was against it and afterwards as Peryam chief Baron did Report It was Resolved by all the Justices That such Eloynment onely is not Felony by the intent of the Statute without Marriage or Carnal Copulation Note By the express purview of the Act the Accessary both before and after is made Principal Pasch 4 Jac. Regis By the Commandement of the King it was referred to Popham Chief Baron and my self what Right the Queen which now is hath and in what Cases to a Right claim'd by her called Aurum Reginae that is to say Pro centum marcis argenti una marca Auri solvendum per illum qui se sponte obligat And upon consideration had thereof and view of Records and Presidents viz. Librum Rubrum in Scaccario fol. 56. de Auro Reginae where it is said that this is to be taken De iis qui sponte se obligant Regi c. which is the Foundation of this Claim And of a Record in the Tower 52 H. 3. And a Record in the Exchequer 4 Ed. 1. And a Record in the Exchequer Hill 12 Ed. 3. And in the Tower in the same year in Rot. Claus And of Acts of Parliament 15 Ed. 3. cap. 6. and 31 Ed. 3. cap. 13. and 13 R. 2. in Turri And divers other Presidents and Process out of the Exchequer in the time of R. 2. H. 4. and other Kings till H. 7. It was Resolved that the Queen hath Right to it but with these Limitations 1. It ought to be sponte by the Subject sine coactione And for this all Fines upon Judgments or by Offer or Fine for Alienation or any other Case where the Subject doth it not sponte sine aliqui coactione That the King of Right ought to have it there the Queen shall have nothing 2. It ought to be sponte sine consideration alicujus reventionis seu interesse That the King hath in esse in jure Coronae As upon Sale
Ecclesiastical Judge that were in danger of Premunire before 1 Eliz. are now in case of Premunire after the said Act the said Acts of Premunire not being repealed by 1 Eliz. 1. 2. And as to first and second Objections it was answered That true it is The Crown of England hath as well Ecclesiastical as Temporal Jurisdiction annex'd to it as appears by the Resolution in Cawdryes Case from Age to Age. And though this was de jure yet where the Pope became so Potent he usurped upon the Kings Ecclesiastical Power in this Realm but this was meer Usurpation And therefore all the Kings of this Realm Totis viribus proinde for establishing of their Temporal Law by which they inherit their Crown and by which c. were alwayes jealous in any part or point it should be incroached upon And if the Ecclesiastical Law did usurp upon the Temporal it was severely punished and the Offender judged an Enemy to the King by the ancient Statutes and every one might have killed him before the Statute of 5 Eliz. And this is the Reason the Crown it self is directed descendable by the Common Law and Treason against the Crown is punished by this Law And therefore usurpation by an Ecclesiasticall Judge upon it is said to be contra Coronam et dignitatem Regis And all Prohibitions since 1 Eliz. do conclude contra Coronam et dignitatem Regiam for as 't was resolved by all the Justices Pasch 4 Jac. Regis est contra Coronam c. when any Ecclesiastical Judge doth usurpe upon the Temporal Law for the cause of the Subject is drawn ad aliud examen when his Cause is not ended by the Common Law whereto by Birth-right he is inheritable 3. As to the Third though the Court by force of High-Commission is the Court of the King yet their proceedings are Ecclesiastical And therefore if they usurpe upon the Temporal Law this is the same offence which was before the Act 10 Eliz. 4. As to the Fourth though it be a new Court yet the antient Statutes extend to it in this word Alibi and in H. 8. times several new Bishopricks were erected yet never any question but the old Acts of Premuri did extend to them But to answer all Objections at once whereas the Act 1 Eliz. repealed the Statute 1 2 P. M. cap. 8. yet there is an express Proviso in the said Act 1 Eliz. That it shall not extend to Repeal any Clause or Matter contained in the 1 et 2 P. M. which in any sort concerneth any matter or cause of Premunire but that all of that stand in force See the said two Acts and also 16 R. 2. Also the Act of 1 Eliz. revives the Act 25 H. 8. cap. 10. which makes a Premunire in a Dean and Chapter c. for not electing certifying or admitting a Bishop elected by all which it appears the said Act of 1 Eliz. never intended to take away the offence of Premunire But note in what Cases a Premunire lyes and in what not 1. In all Causes when the Cause originally belongs to the Cognizance of the Ecclesiastical Court and Suit is prosecuted there as belonging to their Cognizance though in truth if rightly examined it ought to be determined â—t Common Law yet no Premunire lyes there but a Prohibition As if Tythes are severed from the nine parts and are carried away if the Parson sue for the Substraction of these Tythes in the Spiritual Court this is not in the case of Premunire Vide 10 H. 4. 2. agreeing with this Opinion So if a Parson sue for Tythes of surmising that they were Sylvae Caduae under the age of 20 years where in truth they were above yet a Prohibition lyeth and no Premunire 2. But though the Cause originally may appertain to the Cognizance of the Ecclesiastical Judge yet if he sue for it in the nature of a Suit which doth not belong to the Ecclesiastical Court but to the Common Law there a Premunire lyeth As in the former Case If the Parson after severing of Tythes will in any Ecclesiastical Court sue for carrying away his Tythes from the 9 parts which Action pertains to the Common Law In such case both the Actor and Judge incurr the danger of Premunire And so it was adjudged 17 H. 8. as Spillmâ—n Reports it One Turbâ—rvile sued a Premunire against a Parson that convened him into the Ecclesiastical Court and there libell'd against him for taking of Ty hes which were sever from the nine parts and the Parson was condemned to be out of the protection of the King to forfeit all his Lands Goods and Chattels and his Body to perpetual Imprisonment and damages to the Party So of a Mortuary delivered and re-taken if the Parson sue for this as for a Mortuary to him delivered he is in case of Premunire 10 H. 4. 2. So in the case put for tythe of Wood if it appear by the Libell that the Cognizance of the Case doth not belong to Court Christian the Premunire lyes as you may see in the Book of Entries tit Dismes fol. 221. But the tit Prohibition fol. 449. Divisione Dismes Ps 2 3 4 5 6. If the suit be pro Sylva caedua c. and the Suit be framed so as the Cognizance belongs to Court Christian though the truth be otherwise no Premunire but a Prohibition lyes 3. When the cause originally belongs to the Cognizance of the Common Law and not to the Ecclesiastical Court there though they Libel for it according to the course of the Ecclesiastical Law yet the Premunire lyeth because that this draws the cause which is determinable at Common Law ad aliud examen viz. to be decided by the Civil Law and so deprives the Subject of the Common Law his Birth-right and wiâ—h this agrees the Book of Entries tit Premunire fol. 229. b. 430. a. So that if the Original cause be Temporal though that they proceed by Citation Libel c. in Ecclesiastical manner yet this is in danger of Premunire And the reason of this is because he endeavours to draw Cognitionem quae ad Curiam domini Regis pertinet ad aliud examen that is that the Debt the Cognizance whereof belongs to the Court of the King he intends by the Original Suit to draw it to be determined by the Ecclesiastical Court And note In the Indictment of Premunire against Cardinal Woolsâ—y Mich. 21 H. 8. 14. it is said Quod Praedictus Cardinalis intend finaliter antiquissimas leges Angliae penitus subvertere et enervare univer sumque hoc Regnum Angliae et ejusdem Angliae populum legibus imperialibus vuilgo dict legibus Civilibus et â—orum legum Canonibus isperpetuum subjurare c. And this included within these words Ad aliud examen trahere viz. to decide that by the Civil Law which is determinable by the Common Law And upon this was a notable Case in Hill an 25 H. 8. of
Nicholas Bishop of Norwich against whom he then being in the Custody of the Marshall the Kings Attorney did prefer a Bill of Premunire the matter whereof was this In Thetford in Com. Norfolke hath been de tempore cujus c. such Custom that all Ecclesiastical Causes rising in that Town should be determined before the Dean of that Town who hath particular Jurisdiction there and that none in that Town shall be drawn in Plea in any other Court-Christian unless before the same Dean And if it ought to be done against the same Custom this to be presented before the Mayor of the same Town and the Party to forfeit 6 s. 8 d. That One such sued in the Consistory of the Bishop for a thing arising within the said Town which was presented before the Mayor for which he forfeited 6 s. 8 d. The Bishop cited the Mayor to appear before him at his House at Hoxin in Suffolk generally pro salute animae but upon appearance◠〈◊〉 upon all the Matter and enjoyn'd him on pain of Excommunication to annul the said Presentment The Bishop had Council assigned him who objected That as well the Presentment as Custom was void and therefore not contra Coronam c. nor drawn by the Bishop ad aliud examen 2. They objected That the Bishop's Court was not intended within the Act of 16 R. 2. but in Cur. Romana aut alibi and this alibi ought not to be out of the Realm but it was Resolved by Fitz James chief Justice Et. per totam Curiam that be the Custom or Presentment good or bad this is a Temporal thing determinable at Common Law and not in Spiritual Court and therefore the Bishop hath incurred the Premunire 3. That alibi extends as well to the Bishop's Courts c. as well within the Realm as else-where and so the Court said it had been often adjudged whereupon the Bishop confessed the Indictment And Judgment was given That he shall be out of the King's Protection and that his Lands Goods and Chattels should be forfeited and his Body to be imprisoned ad voluntatem Regis c. Nicholas Fuller's Case In the great Case of Nicholas Fuller of Grays-Inn these Points were Resolved by all the Justices and Barons of the Exchequer 1. Resolved That no Consultation can be granted out of Term because it is a final award of the Court and can neither be granted in Term nor out of Term by all the Judges except in Court the name of the Writ signifying the same 2. Resolved That the Construction of the Statute 1 Eliz. cap. 1. and of the Letters Patents of High-Commission in Ecclesiastical Causes founded upon the said Act belongs to the Judges of the Common Law And therefore the Consultation which was granted with this restraint Quatenus non agat de authoritate et validitate Literarum Patentium pro causis Ecclesiasticis vobis vel aliquibus vestrum direct aut de expesitione et interpretatione Statuti de anno primo nuper Reginae c. As if the King hath a Benefice donative by Letters Patents this shall not be visitable nor deprivable by any Ecclesiastical Authority but by the Chancellor of the King or Commissioners under the Great Seal 3. Resolved When there is any Question concerning what Power or Jurisdiction belongs to Ecclesiastical Judges in any such Case the determination of this belongs to the Judges of the Common Law in what cases they have Cognizance and in what not And according to this Resolution Bracton lib. 5. tract de except cap. 15. fol. 412. Vide also Entries fol. 445. There was a Question whether Court-Christian should have Cognizance of a Lamp and a Prohibition was granted Quod non procedant in Curia Christianitatis quousque in Curiae â—ostra discussum fuerit utram cognitio placiti illius ad Curiam nostram vel ad forum Ecclesiasticum pertineat And all this appears in our Books that the Judges of the Common Law shall determâ—ne in what Cases the Ecclesiastical Judges have Power to punish any pro Laesioae fidei 2 H. 4. fol. 10. 11 H. 4. 88. 22 Ed. 4. 20. or of the bounds of Parishes 5 Ed. 3 8 8 Ed. 3. 69. 70. 18 Ed. 3. 58. 12 Ed. 4. 9 H. 7. 1. 10 H. 7. 9. And therefore in this Case of Fuller one other Restraint was added in the Consultation Et quatenus non agat de aliquibus scandalis contemptibus sâ—u aliis rebus quae ad communen legem aut Statuta Regni nostri Angliae suat puâ—ienda et determinanda 4. Resolved That if a Councellor at Law in his Argument shall scandal the King or his Government Temporal or Ecclesiastical this is a misdemeanor and and contempt to the Court for which he shall be indicted fined and imprisoned but not in Court Christian but if he publish any Heresy Schisme or erroneous Opinion in Religion he may for this be punished by the Ecclesiastical Judges for the Rule is Quod non est juri consonum quod quis pro aliis quae in Curiis nostris act a sunt quorum cognitio ad nos pertinet trahatur in placitum in Curia Christianitatis See the Book of Entries fol. 448. And for this cause a Consultation was granted Quoad Schismata Hereses c. Vide Mâ—ch 18 H. 8. Rot. 78. in Banco Regis The Case was a Leet was â—eld Jovis post Festum Sancti Mich. Arch. 17 H. 8. of the Prior of the House of St. John de Bethelehem de Shrine of this Mannor of Levisham in Com. Surrey before John Beare Steward there a Grand Jury was charged to inquire for the King of all Offences inquirable within the said Leet where one Phillip Aldwin who was a resident within the said Leet appeared Idemque Phillippus sciens quandam Margaretam uxorem Johannis Aldwin apud East-Greenwich infra jurisdictionem Letae proed pluries per antea corpus suum in adulterio viciose exercuissse c. eisdem sic juratis de dicta c. informationem veraciter dedit Upon which the said Margaret drew the said Phillip into the Archbishop of Canterbury his Court and there libelled against him for defamation of Adultery and that the Phillip said in hisce Angl. verbis Margaret Allen is a Whore and a Bawde and it is not yet three weeks agone since a man might take a Priest betwixt her Legs which words were parcel of the words by which he informed the Jury at the Leet And upon this he had a Prohibition and by this Record it appears and by the Statute 10 Ed. 3. c. 11. that Indictors of Lay-People or Clerks in Turneys and after delivering them before Justices shall not be sued for Defamation in Court-Christian but that the Plaintiff grieved shall have a Prohibition Vide Pasch 6 Eliz. In the Lord Dyers Reports which Case is not Printed John Halles in the Case of Marriage between the Earl of Hereford and the Lady Katharine Gray declared his Opinion against the
in the Star-Chamber upon the Proclamation against Building and that I had given Sentence against the said Proclamation To which I answered That Presidents were to be seen and Considerations to be had upon Conference with my Brethren for Melius est recurrere quam male currere and Indictments conclude contra leges statuta never contra regiam Proclamationem At last my motion was allowed and the Lords appointed the two Chief Justices Chief Baron and Baron Altham to consider of it Note the King by his Proclamation or otherwise cannot change any part of the Common-Law Statute-Law or Customs of the Realm 11 H. 4. 37. Fortescue in laudibus legum Ang. cap. 9. 18 Ed. 4. 35 36 c. 31 H. 8. cap. 8. ubi non est lex ubi non est transgressio ergo That which cannot be punished without Proclamation cannot be punished with it Vide le Stat. 31 H. 8. cap. 8. But if a man be indicted upon a Contempt against a Proclamation he shall be Fined anâ— imprisoned Vide Fortescue cap. 9. 18 34 36 37 c. In all Cases the King out of his Providence and to prevent dangers may prohibite them before which will aggravate the Offence if it be afterwards committed And as it is a Grand Prerogative of the King to make Proclamations 22 H. 8. Procl B. yet we find Presidents of Proclamations utterly against Law and Reason and therefore void For Quae contra rationem Juris introducta sunt non debent trahi in sequentiam An Act made to License Forreiners to Merchandize in London H. 4. by Proclamation prohibited the Execution of it usque ad prox Parliament which was against Law Vide doâ—s claus 8 H. 4. Proc. in London but 9 H. 4. An Act was made That all Irish should depart the Realm before the Feast of the Nativity this only was in terrorem being utterly against Law Hollingshead 772. Anno Dom. 1546. 37 H. 8. The Whorâ—-houses vulgo Stews were suppressed by Proclamation and found of Trumpet In the same Term Râ—solved by the two Chief Justices Chief Baron and Baron Altham upon Conference between the Lords of the Privy-Council and them That the King by his Proclamation cannot create any Offence which was not an Offence before for then he may alter the Law And the Law of England is divided into three parts 1. Common-Law 2. Statute-Law 3. Custom But the Kings Proclamation is none of them Resolved also That he hath no Prerogative but what the Law of the Land allows him but he mry by Proclamation admonish his Subjects that they keep the Laws upon pain to be inflicted by Law c. Lastly If the Offence be not punishable in the Star-Chamber Prohibition by Proclamation cannot make it punishable there And after this Resolution no Proclamation imposing Fine and Imprisonment was made c. Mich. 8 Jac. Regis Prohibitions It was Resolved in this Term That if a man be excommunicated by the Ordinary where he ought not as after a general Pardon c. and the Defendant being Negligent doth not sue a Prohibition but remains excommunicate by 40 dayes and upon Certificate in Canc is taken by the Kings Writ de excommunicato capiendo no Prohibition lies in this Case because he is taken by the Kings Writ Then it was moved what remedy the Party hath who is wrongfully excommunicate to which it was answered he hath three Remedies 1. He may have a Writ out of Chancery to absolve him 14 H. 4. fol. 14. and with this agrees 7 Ed. 4. 14. 2. When he is excommunicate against the Law of this Realm so that he cannot have a Writ de Cauâ—fone admittenda then he ought Parere mandatis Ecclesiae in sorma Juris i. e. Ecclesiastici where in truth it 's Excommunicatio contra jus forman Juris i. e. Communis Juris But if he shew his Cause to the Bishop and Request him to assoyl him either because he was excommunicate after the Offence pardoned or that the Cause did not appear in Ecclesiastical Cognizance and he refuse he may have an Action Sur le Case against the Ordinary and with this agrees Dr. St. lib. 2. cap. 32. fol. 119. 3. If the Party be excommunicate for nonâ—e of the Causes mentioned in the Act 5 Eliz. cap. 23. then he may plead this in the Kings Bench and so avoid the Penalties in the Act. Note It was Resolved by the Court c. That where one is cited before the Dean of the Articles in cause of defamation for calling the Plaintiff Where out of the Diocess of London against the Statute of 23 H. 8. And the Plaintiff hath Sentence and the Defendant is excommunicated and so continues 80 dayes And upon Certificate into the Chancery a Writ of Excommunicato capiendo is granted and the Defendant taken and imprisoned thereby that he shall not have a Prohibition upon the Statute 23 H. 8. for no Writ in the Register extends to it but there is a Writ there called de cautione admittenda when the Defendant is taken by the Kings Writ de excommunicato capiendo de parendo mandatis Ecclesiae and to assoyl and deliver the Defendant But in the Case at Bar it does not appear to us judicially without Information that the Citation is against the forme of the Statute And the Information comes too late in this Case after the Defendant hath persisted so long in his Contumacy and is taken by the Kings Writ and imprisoned Admiralty It was Resolved per totam Curiam That if One be sued in the Admiralty-Court for a thing alledged to be done upon the High-Sea within the Admirals Jurisdiction and the Defendant plead and confess the thing done and after Sentence the Court will be advised to Grant a Prohibition upon surmise That it was done infra corpus comitatus against their own confession unless it can be made appear to the Court by matter in Writing or other good matter that this was done upon the Land for otherwise every one will stay till after Sentence and then for vexation only sue out a Prohibition And admonition was given to them that sue out Prohibitions That they should not keep them long in their Hands or untill they perceive they cannot prevail in the Ecclesiastical Court then to cast in their Prohibition for if they abuse that liberty to the vexation of the Party we will take such order as in case of a Writ of Priviledge if the Defendant keep it till the Jurors are ready c. it shall not be allowed Hill 8 Jacob. Regis In this Term in Doctor Trevor's Case who was Chancellor of a Bishop in Wales It was Resolved That the Office of a Chancellor and Register c. in Ecclesiastical Courts are within the Statute 5 Ed. 6. cap. 16. which Act being made for avoiding corruption of Officers c. and advancement of worthy Persons shall be expounded most beneficially to suppress Corruption And because the Law allows Ecclesiastical Courts to
same Term the said Judges of the Kings Bench Barons of the Exchequer and Justice Fenner and Yelverton who were omitted before and We the Justices of the Common-Bench were commanded to attend the Council And being all assembled We of the Common-Pleas were commanded to retire and then the King demanded their Opinions in certain Points touching the High-Commission wherein they unanimously agreeing We viz. Coke Walmesly Warberton and Foster were called before the King Prince and Council where the King declared That hy the Advice of his Council and the Justices of the Kings Bench and Barons he will reform the High-Commission in divers Points which after he will have to be obeyed in all Points Whereupon I said to the King That it was grievous to Us his Majesties Justices of the Bench to be severed from our Brethren but more grievous that they differed from us in Opinion without hearing one another especially since in what we have done in Sir VVilliam Chancys Case aud others the like concerning the Power of the High-Commissioners was done judicially in open Court upon argument at the Bar and Bench. And further I said to the King that when we the Justices of the Common-Pleas see the Commission newly reformed We will as to that which is of Right seek to satisfie the Kings expectation and so We departed c. Trin. 9 Jac. Regis Stockdale's Case in the Court of VVards The King by Letters Patents dated 9. April the ninth year of his Reign did Grant to VVilliam Stockdale in these words Such and so many of the Debts Duties Arrearages and Sums of Money being of Record in our Court of Exchequer Court of Wards Dutchy-Court or within any Court or Courts c. in any year or several years from the last year of the Reign of H. 8. to the 13th year of Our Dear Sister as shall amount to the sum of 1000 l. To have takâ— levy c. the said Debts c. to the said VVilliam Stockdale his Executors c. And in this Case divers Points were resolved 1. That the said Grant of the King is void for â—he incertainty for thereby no Debt in certain can pass As if the King have an 100 Acres of Land in D. and he Grants to a Man 20 Acres of the Lands in D. without describing them by the Rent Occupation or Name c. this Grant is void 2. When the Patentee Claims by force of this word Arreragia It was resolved clearly That he shall not have Arrearages of Rents Reliefs and mean Rates of Lands c. in the Court of Wards c. if the Patent go not further But the Proviso in the end of the Patent viz. Provided that the said VVilliam Stockdale shall take no benefit by any means of Arrearages of any Rents c. untill Sir Patrick Murrey and others be paid the sum of 1000 l. c. hath well explained what Arrearages the King intended But clearly mean Rates are not within the words for they are the Profits of Demesne Land Trin. 9 Jacobi Regis Divers men playing at Bowles at great Marlow in Kent two of them fell out and a third man who had not any quarrel in revenge of his Friend struck the other with a Bowl of which he dyed This was held Manslaughter because it happened upon a suddain motion In the same Term a special Verdict divers years past found in the County of Hertford which was That two Boyes fighting together one was seratched in the Face and bled very much at the Nose and so he run three quarters of a Mile to his Father who seeing his Son so abused he took a Cudgel and run to the place where the other Boy was and stroke him upon the Head upon which he dyed And this was held but Man-slaughter for the Passion of the Father was continued and no time to judge it in Law Malice prepense And this Case was moved ad mensam c. Mich. 9 Jac. Regis Memorandum upon Thursday in this Term a High Commission in Causes Ecclesiastical was published in the Archbishops great Chamber at Lambeth in which I with the Chief Justice Chief Baron Justice VVilliams Justice Crooke Baron Altham and Baron Bromly were named Commâ—ssioners among all the Lord of the Council divers Bishops Attorney and Sollicitor and divers Deans and Doctors in the Cannon and Civil Laws And I was commanded to sit by force of the said Commission which I refused for three Causes 1. Because neither I nor any of my Brethren of the Common-Pleas were acquainted with it 2. Because I did not know what was contained in the new Commission and no Judge can execute any Commission with a good Conscience without knowledg for Tantum sibi est permissum quantum est Commissum 3. That there was not any necessity of my sitting who understood nothing of it so long as the other Judges whose advise had been had in this new Commission were there 4. That I have endeavoured to inform my self of it by a Copy from the Rolls but it was not enrolled 5. None can sit by force of any Commission till he hath taken the Oath of Supremacy according to 1 Eliz. and if I may hear the Commission read and have a Copy to advise upon I will either sit or shew cause to the contrary The Lord Treasurer perswaded me to siâ— but I utterly refused it and the rest seemed to incline Then the Commission was openly read containing divers Points against the Laws and Statutes of England At hearing of which all the Judges rejoyced they sate not by it Then the Archbishop made an Oration during all which as the reading of the Commission I stood and would not sit and so by my Example did the rest of the Judges And so the Archbishop appointed the great Chamber at Lambeth in Winter and the Hall in Summer and every Thursday in the Term at two a clock Afnoon and in the Forenoon one Sermon Mich. 9 Jacob. Regis In this Term the Issue in an Information upon the 〈◊〉 2 H. 6. 15. was tryed at the Bar and upon Evidencâ— upon the words of the Statute which are That evâ—â—y person that sets or fastens in the Thames any Nets or Enâ—iâ—â—s called Trincks or any other Nâ—ts to any â—â—sts c. to stand continually day and night forfeits to â—he King 100 s. for every time c. And the Defendants having set and fastned Nets called Trincks in the Thames c. to Boats day and night as long as the Tide served and nor continually The Question was If this was within the Statute and it was clearly Resolved That it was within the Statute for the Nets called Trinks cannot stand longer than the Tyde serve and for this the word continually shall be taken for so long as they may stand to take Fish for lex non intendit aliquid impossibile Mich. 9 Jacob. Regis Shulters Case in the Star-Chamber The Case was such John Shulter of Wisbich of the age of 115 years
of the Perjury by all the Lords in the Star-Chamber and it was Resolved by all That it was by the Common-Law punishable before any Statute Hayes Case in Cur-Wardorum By Inquisition in the County of Middlesex Anno 6 Jac. by vertue of a diem clausit extremum after the death of Humphry Willward it was found that the said Humphry died seized of a Messuage and 26 Acres of Land in Stepney and that John Willward was his Heir being 14 years and 9 days old and that the Land was held of the King in capite by Knights Service John Willward died within age and by Inquisition in Middlesex 8 Jun. Anno Jac. by vertue of a Writ of Deveneront after the said John's death it was found that John dyed seized in Ward to the King and that the said Messuage and Lands at the time of the said John's death were holden of the Dean of Pauls as of his Mannor of Shadwel All the mean Rates incurred in John's life-time are paid to the King 1. The Questions are 1. Whether by John's death and finding of the mean Tenure in the Deveneront the fiâ—st Office granted to Points be determined 2. Whether the Tenure found by the first Office may be traversed And as to these Questions it was Resolved by the two Chief Justices and chief Baron That where the said John dyed the Office found by force of the Diem clausit extremum after Humphries death whereby the King was entituled to the Guardianship of John hath taken its effect and is executed and does remain as Evidence for the King after Johns death but yet is not traversable for it is traversable during the time it remains in force onely and the Jurors upon the Deveneront after the death of the said John are at liberty to find the certainty of the Tenure and they are not concluded by the first Inquisition and with this agrees 1 H. 4. 68. And this appears by the diversity between the Writ of Diem clausit extremum and the Deveneront which is but in one Point to wit the Diem clausit extremum is general And the Deveneront is not general but does restrain onely the Lands and Tenements quod deveneront c. And thus it was Resolved nono Jacobi in the Court of Wards in the Case of Dune Lewis Award of Capias Uâ—lagatum by Justices of the Peace In this same Term the Opinion of all the Court of Common-Pleus was That if one be out-lawed before Justices of Assize or Justices of Peace upon an Indictment of Felony that they may award a Capias Utlagatum and so was the Opinion of Pâ—riam Chief Baron and all the Court of Exchequer as to Justices of Peace for they that have power to award process of Outlawry have also power to award a Capias utlagatum See 34 H. 8. c. 14. See Lamb. Justice of Peace fol. 503. contra But see 1 Ed. 6. cap. 1. Justices of Peace in case of Profanation of the Sacrament shall award a Capias Utlagatum throughout all England Hersey's Case Star-Chamber John Hersey Gent exhibited his Bill in the Star-chamber against Anthony Barker Knight Thomas Barker Councellor at Law Robert Wright Doctor of Divinity Ravenscroft Clerk and John Hai is and thereby charged the Defendants with forging the Will of one Margery Pain and the Cause came to Hearing ad requisitionem defendentium and upon hearing the Plaintiffs Councel there appeared no Presumption against any of the Defendants but that the Testament was duly proved in the Ecclesiastical Court and upon an Appeal was also affirmed before Commissioners Delegates and Decreed also in Chancery So that it appeared to the Court that the said Bill was preferred of meer malice to slander the Defendants Now because the Defendants had no Remedy at Law for the said Slander and if it should pass unpunished it may encourage men It was Resolved by the Court That by the course of the Court and according to former Presidents the Court may give Damages to the Defendants and so it was done viz. 200 l. to the Doctor of Divinity 200 Marks to the Knight 40 l. to the Clerk 120 l. to the Woman And it was said that Creare ex ihilo quando bonum est est divinum sed creare aliquid ex nihilo quando est malum est diabolicum et plus Maledicite nocâ—nt quam Benedicite docent Hill 2 Jac. Regis Theodore Tomlinson brought an Action of account for Goods against one Philips in the Common Pleas and thereupon Philips sued Tomlinson in the Admiralty supposing the Goods to have been received in Forraign Parts beyond Sea and Tomlinson being committed for refusing to answer upon his Oath to some Interrogatories brought his Habeas Corpus Upon which it was resolved by the Court of Common plea in thrâ—e Points viz. 1. That the Court of Admiralty hath no Cognizance of things done beyond Sea and this appears plainly by the Statute 13 R. 2. cap. 5. and the 19 H 6. fol. 7. 2. That the Proceedings in the Court of Admiralty are according to the Civil Law and therefore the Court is not of Record and so cannot assess a Fine as the Judges of a Court of Record may 3. It doth appear that the Interrogatories were of such things as were within their Jurisdiction and the Parry ought by Law to answer This Case was intended by my Lord Coke to be inserted into his 7th Report but that the King commanded it should not be Printed but the Judges resolved ut supra Corven's Case Right to Sâ—ats in the Church Corven did Libel against Pym for a Seat in a Church in Dâ—vonshire And Pym by Sergeant Hutton moved for a Prohibition upon this Reason that himself is seized of a House in the said Parish and that he and all whose Estates he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court that if a Lord of a Mannor or other Person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their Charges that if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of the Church iâ— a Question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed that the Ordinary who hath Cure of Soules will take Order in such Cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Dame Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in the Kings-Bench against a Parson Quare Tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it is there
holden That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there in honour of the Deceased the same Reason of a Coat-Armour c. And the Chief Justice said the Lady might have a good Action during her Life in the Case aforesaid because she caused the things to he set up there and after her death the Heir shall have his Action they being in the nature of Hire-looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanâ—us sol 13. Coâ—cl 29. Actioâ— dat si aliquis arma in aliquo loco posita deleat aut abrasit c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter Term 10 Jacob. it was Resolved in the Star-Chamber in the Case between Hussâ—y and Katharine Leyton that if a man have a house in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such Prescription the Ordinary shall dispose of common and vulgar Seats Earl of Shrewes buryes Case Sir Humphry Winch Sir James Ley Sir Anthony St. Leger and Sir James Hullesâ—on certified the Lords of the Councel by Command from them by Letters dated 28. Martii 1612. of the Claim of Gilbert Earl of Shrewesbury to the Earldome of Waterford and Barony of Dungarvan in Ireland as followeth King Henry the Sixth by Letters-Patents in the 20th year of his Reign did Grant to his Cosin John Earl of Shrewsbury in consideration of his Loyal Services in the City and County of Waterford pro se c. ipsum in Comitem Waterford una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus creamus habendum to the said Earl and his Heirs-males of his Body and further did Grant the Castles Lordships c. of Dungarvan to the said Earl and the Heirs-males of his Body To hold c. of the King and his Heirs by Homage and Fealty and by the Service of being his Majesties Seneschal in Ireland After in the Parliament called Des Absentees holden at Dublin in Ireland 10. Maii 28 H. 8. It was enacted by reason of the long absence of George Earl of Shrewesbury out of the said Realm That the King his Heirs c. shall enjoy in right of his Crown of England all Honors Mannors Castles c. and all and singular possessions c. as well Spiritual as Temporal which the said George Earl of Shrewesbury and VVaterford or any other Persons had to his Use c. King Henry the 8th by his Letters Patents dated 29th of his Reign reciting the said Statute Nos praemissa Considerantes c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto c. in the County of Nottingham and the Lordship of Rotheram in the County of York the Abbeys of Chestersteld Shirbrook and Glossaâ—dale in Derbyshire with divers other Lands c. to be holden in Capite And the Questions were as followeth 1. Whether by the long absence of the Earl of Shrewsbury out of Ireland the Title of the Honor be lost and forfeited he being a Peer of both Realms and refiding here in England 2. Whether by the Act Des absentâ—es 28 H. 8. the Title of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land c. Afterwards by other Letters Patents dated 27th of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case and to certifie their Opinions which Case being argued by Councel learned in the Law in behalf the said Earl and they having taken great advisement It was unanimously Resolved by them all as followeth 1. As to the fiâ—st Resolved That since it does not appear what defence was requisite and that the Consideration Executory was not found by Office to be broken in that Point the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford 2. As to the second It was Resolved That the said Act 28 H. 8. Des Absenteâ—s does not onely take away the Possessions given him at his Creation but also the Dignity it self for though one may have a Dignity without Possession yet is it very inconvenient that Dignity should be cloathed with Poverty and so it was resolved in the Lord Ogles Case in Edw. 6. Reign as the Baron of Burleigh 35 Elâ—z did report The cause of Degradation of George Nevil Duke of Bedford is worth observation which was done by Act of Parliament 16 June 17 Ed. 4. which Act reciting the making the said George Duke sets forth the cause of his Degradation in these words And for so much as it is openly known that the said George hath not or by Inheritance may have any livelyhood to support the said Name Estate and Dignity c. Therefore the King by Advice of his Lords Spiritual and Temporal and Commons c. Enacteth c. That from henceforth the same Creation of the said Duke and all Names of Dignity given to the said George or to John Nevil his Father be void and of none effect Wherein are to be observed 1. That though the Duke had not Possessions to maintain his Dignity yet it could not be taken from him but by Act of Parliament 2. Great Inconveniencies follow where there is great State and Dignity and no means to maintain it 3. It is good reason to take away such Dignity by Act of Parliament and then the Act shall be expounded to take away such Inconvenience And though the Earl of Shrewsbury be of great Honour Vertue and Possessions in England yet it was not the Intention of the Act to continue him Earl in Ireland when his Possessions there were taken away And where it was objected that the general words Honours and Hereditaments are explained and qualified by the said Relative subsequent which the said George or any to his use hath Now in regard no man can be seized of the said Digniâ—y therefore the Act doth not extend to it 'T is answered that is to be understood Reddendo singula singulis and these words which the said G. E. hath are sufficient to pass the Dignity and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Reports sol 33 and 34. Hill 2 Jacob. Regis Jurisdiction of the Court of Common-Pleas In the last Term by the King's Commands the Justices of the Kings Bench and Barons of the Exchequer were assembled before the Lord Chancellor Ellesmere at York-house to deliver their Opinion Whether there was any Authority in our Books that the Justices of the Common-Bench may grant Prohibitions or whether every Plea ought to be pending
in the Court for such cause And the King would know their Opinions The Judges took time till this Term and then Fleming Chief Justice Tanfield Chief Baron Saig Altham Crook Bromley and Dodderidge Yelverton and Williams Justices being dead since last Term did deliver their Opinions to the Lord Chancellor That the Presidents of each Court are sufficient Warrant for their Proceedings in the same Court and for a long time and in many Successions of Reverend Judges Prohibitions upon Information without any other Plea pending have been granted Issues tryed Verdicts and Judgments given upon Demurrer All which being in force they unanimously agreed to give no Opinion against the Jurisdiction of the Common-Bench in this Case See my Treatise of the Jurisdiction of the Common-Bench in this Point Hill 10 Jac. Regis Parliament in Ireland The Lords of the Councel did write to the two Chief Justices and Chief Baron to look into Poynings Act made 10 H. 7. in Ireland and to consider thereof and certifie what shall be fit to be held concerning the same their Letter bore date Ultimo Janii 1612. Upon which in this Term the said Chief Justices Chief Baron Attorney and Sollicitor General were assembled two days at Sergeants Inne And they considered not onely of the said Act 10 H. 7. c. 4. called Poynings Act but also of an Act made in Ireland 3 4 P. M. c. 4. Entituled An Act declaring how Poynings Act shall be expounded and taken for by the said Act 10 H. 7. it is provided That no Parliament be hereafter holden in Ireland but when the Kings Lieutenant and Councell there first certifie the King under the Great Seal of that Land the causes c. and such causes c. affirmed by the King and his Councel to be good and expedient for the Land and his Licence thereupon c. A Parliament to be holden after the former before c. And any Parliament holden contrary c. to be void in Law Upon which Act divers Doubts were conceived 1. And first Whether the said Act 10 H. 7. does extend to the Successors of H. 7. the Act speaking onely of the King generally and not his Successors 2. If the Queen Mary were within the word King and both were held affirmatively for the word King being spoke indefinitely does extend in Law to all his Successors And this is so expounded by the Act 3 and 4 P. and M. viz. That the said Act 10 H. 7. shall extend to the King and Queens Majesty her Heirs and Successors Secondly where Povnings Act sayes the Kings Lieutenant and Councel the said Act 3 and 4 P. and M. explains it to extend to all other Officers the King shall Depute by what Name soever 3. The greatest Doubt was upon these words of Poynings Act And such Causes Considerations and Acts affirmed by the King and his Councel to be good and expedient for the Land c. Whether the King may make any change or alteration of the Causes c. which shall be transmitted hither from the Lieutenant and Councel of Ireland for that it is not affirmative but correction and alteration of them and therefore it was necessary to explain that the Act 3 and 4 P. and M. was in these words Either for the passing of the said Acts and in such form and tenor as they should be sent into England or else for the change or alteration of them or any part of them 4. Another Doubt arose from these words That dâ—ne a Parliament to be had If at the same Parl. other Acts which have been affirmed or altered here may be Enacted there which is explained by the said last Act in these words viz. For passing and agreeing upon such Acts and no others as shall be returned c. 5. A fifth Doubt arose from the same words Whether the Lieutenant and Councel of Ireland after the Parliament begun and pendente Parliamento may upon debate there transmit any other Considerations c. the which said Act 3 and 4 P. and M. is by express words explained they may And it was unanimously Resolved That the Causes Considerations and Acts transmitted hither under the Great Seal of Ireland ought to be kept in the Chancery in England and not be remanded 2. Iâ— they be affirmed they must be transcribed under the Great Seâ—l and so returned into Ireland 3. If the Acts transmitted hither be in any part altered or changed here the Act so altered must forthwith be returned under the Great Seal of England for the Transcript under the Irish Great Seal to remain in Chancery here shall not be amended but the Amendment shall be under the English Great Seal See 10 H. 6. 8. which begins Mich. 18 H. 6. Rot. 46. coram Rege how a Parliament was holden there before Poynings Act. See also another Act made in Ireland the same 10 H. 7. c. 22. vide R. 3. 12. Hibernia habet Parliamenta faciunt leges nostra statuta non ligant â—os quia non mittunt milites ad Parliamentum sed personae coâ—um sunt subjecti Regis sicut inhabitantâ—s Calinae Gascogniae Guienae But question is made of this in some of our Books vid. 20 H. 6. 8. 32 H 6 25. 1 H. 7. 3. 8 H. 7. 10. 8 R. 2. Precess 204. 13 Ed. 2. Tit. Bastard 11 H. 47. 7 Ed. 4. 27. Plow Comment 368. 13 Eliz. Dyer 35. 2 Eliz. Dyer 366. Calvins Case 7th of my Reports 226. 14 Ed. 3. 184. A Prâ—bend in England made Bishop of Dublin in Ireland his Prebendary is voâ—d See the Sâ—atute of Ireland c. That the Acts of Parliament made in England since the 10 H. 7. do not hind them in Ireland but all made in England before the 10 H. 7. by the Act made in Ireland 10 H. 7. c. 22. do bind them in Ireland Note Cambden King at Arms told me that some held if a Baron dyes having Issue divers Daughters the King confer the Dignity to him who marryes any of them as hath been done in divers Cases viz. In the case of the Lord Cromwel who had Issue divers Daughters And the King did confer the Dignity upon Burchier who marryed the youngest Daughter and he was called Cromwel and so in other Cases Note by Linwood it appears by the Canons Ecclesiastick none may exercise Ecclesiastick Jurisdiction unless he be within the Orders of the Church because none may pronounce Excommunication but a Spiritual Person But now by the 37 H. 8. c. 17. a Doctor of Law or Register though a Lay-man may execute Ecclesiastical Jurisdiction No Ecclesiastical may cite a Church-Warden to the Court but so as he may return home the same day Also the Canons limit how many Courts Ex Officio they may have in a year Mich. 11 Jac. Regis Note If a man give to one of his Children a certain sum in his life and after dyes though this is not given as a Child 's full Portion yet it
positivi Juris est And he holds that a Portion is due by the Law of Nature which is the Law of God but it pertains to the Law of Man to assign Hane vâ—l illam portionem And saith further That Tythes may be exchanged into Lands Annuity or Rent c. And also that in Italy and other the East-Countries they pay not Tythes but a certain Portion according to the Custom And forasmuch as the Tenth Part is now due Ex Institutione Ecclâ—â—â—ae that is by their Canons and it appears by 25 H. 8. cap. 19. That all Canons c. made against the King's Prerogative c. are void and that Law was but Declaratory for no Statute or Custome of the Realm can be abrogated by any Cannon c. and that well appeareth by 10 H. 7. fol. 17. cap. 18. The second Point which agrees with the Law at this day which was adjudged in the said Record 25 H. 3. is That the Limits and Bounds of Towns and Parishes shall be trayed by the Common-Law and not by the Spirituall Court And in this the Law hath great Reason for thereupon depends the Title of Inheritance of the Layfee whereof the Tythes were demanded for Fines and Recoveries are the common Assurances of Lay-Inheritances and if the Spiritual Court should try the Bounds of Towns if they determine that my Land lyeth in another Town than is contained in my Fine Recovery or other Assurance I am in danger to lose my Inheritance and therewith agrees 39 Ed. 3. 29. 5 H. 5. 10. 32 Ed. 4. Consultation 3 Ed. 4. 14. 19 H. 6. 20. 50 Ed. 3. 20. and many other Presidents to this day And Note There is a Rule in Law that when the Right of Tythes shall be tryed in the Spiritual Court and the Spiritual Court hath Jurisdiction of the same that our Courts shall be oâ—sted of the Jurisdiction 35 H. 6. 47. 38 H. 6. 21. 2 Ed. 4. 15. 22 Ed. 4. 13. 38 Ed. 3. 36. 14 H. 7. 17. 13 H. 2. Jurisâ— 19 and when not ousted 12 H. 2. Jurisdiction 17. 13 â— 2. ibid. 19. 7 H. 4. 34. 14 H. 4. 17. 38 Ed. 3. 56. 42 Ed 3. 12. And the Causes why the Judges of the Common-Law would not permit the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Court is because that if the Recompence which is to be given to the Parson in satisfaction of his Tythes doth not amount to the value of his Tythes in kind they would overthrow the same And that appears by Linwood among the Constitutions Simonis Mepham tit de Decimis cap. Quoniam propter fol. 139. b. verbo Consuetudines And that is the true Reason and therefore a Prohibition lyes and therewith agrees 8 Ed. 4. 14. and the other Books aforesaid and infinite Presidents See 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Justices Mich. 6 Jacobi Regis In the Exchequer Baron and Boyse Case In the Case between Baron and Boys in Information upon the Stat. 5 Ed. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer that the Defendant had ingrossed Apples against the said Act. The Barons held clearly that Apples were not within the Act and gave Judgment against the Informer upon the matter apparent to them and caused the same to be entred in the Margin of the Record where the Judgment was given The Informer brought a Writ of Errour in the Exchequer Chamber and the onely Question was Whether Apples were within the said Act. The Letter of which is viz. That whatsoever person c. shall ingross or get into his or her hands by buyiâ—â— c. any Corn growing or other Corn or Grain Butter Cheese Fish or other dead Victuall c. to sell the same again shall be accepted c. an unlawsul Ingrosser And though the Sâ—at 2 Ed. 6. 6. 15. numbreth Butchers Brewers Bakers Cooks Coster Mongers and Fruiterers as Victuallers yet Apples are not dead Victuals within the 5 Ed. 6. there being no Provisoe for Coster-mongers and Fruiterers in the said Act as there are for Buyers and Sellers of Corn and other Victualâ— Also ever since the Act they have bought Apples by Ingross and sold them again and yet no Information was ever before this for the same being for Delicacy more than necessary Food But the Stat. 5 Ed. 6. is intended of things necessary for sustenance of man where the Statute of 2 Edward the 6. 15. made against Conspiracies to enhance the Prices was done by express words to extend it to things which are more of pleasure than profit But this was not resolved by the Justices because the Information was conceived upon that Branch of the Statute concerning Ingrossers Hill 27 Eliz. in Chancery Hill 27 Eliz. In Chancery the Case was thus Ninian Menvil seized of certain Lands in Fee took a Wife and levyed a Fine of the said Lands with Proclamations and afterwards was indicted and outlawed of High-Treason and dyed The Conusees convey the Land to the Queen who is now seized The five years pass after the Husband's death the Daughters and Heirs of the said Ninian in a Writ of Errour in the Kings-Bench reverse the said Attainder M. 26 and 27 Eliz. and thereupon the Wife sues to the Queen by Petition containing all the special matter Which Petition being indorsed by the Queen Fait droit aux Parties c. the same was sent into Chancery as the manner is And in this Case divers Objections were made against the Demandant 1. That the Fine with Proclamations should bar the Wife of Dower and the Attainder of her Husband should not help her for as long as that remained in force the same was a Bar also of her Dower But admit the Attainder of the Husband shall avail the Wife the same being reversed by a Writ of Errour and so in Judgment of Law as if it had never been and against which a man might plead there is no such Record agreeing with the Book 4 H. 7. 11. and the Case in 4 H. 7. 10. b. is A. seized of Land in Fee was Attaint of Hâ—gh-Treason The King grants the Land to B. and afterwards A. committed Trespass upon the Land and after by Paâ—l A. was restored and the Attainder void This shall be as auciplable and ample to A. as if no Attainder had been Afterwards B. brinâ—s Trespass for the Trespass Mesne and it was adjudged 10 H. 7. f. 22. b. that the Action of Trespass was not maintainable because the Attainder was annulled ab initio 2. It was objected That the Wife could not have a Petition because there was not any Officâ— by which her Title of Dower was sound viz. her Marriage her Husbands Seizin and Death for it was said that though he was marryed yet if her Husband was not seized after the Age that she is Dowable she shall not have Dower And the Title of him that sueth by Petition ought to be
found by Office as appears by the Books 11 H. 4. 52. Ass 31. 30. Ass 28. 46 Ed. 3. bre 618. 9 H. 7. 24. c. 1 As to the first it was Resolved That the Wife should be endowed and that the Fine with Proclamations was not a Bar to her and yet it was Resolved That the Act 4 H. 7. c. 24. shall barre a Woman of her Dower by such a Fine if the Woman bring not her Writ of Dower within five years after the Husbands death as was adjudged Hill 4 H. 8. Rot. 344. in the Common-Pleas and 5 Eliz Dyer 224. For by the Act the Title of Feâ—e-Covert iâ— saved by taking Action in 5 years after she is uncovert c. But it was Râ—solved That the Wife was not to be aâ—dâ—d by that saving for in respect of her Husbands Attainder she had not any Right of Dower at his death nor could sue for the same after his death But it was Resolved That the Wife was to be aided by another former saving in the same Act viz. And saving to all other persons viz. who were not Parties to the Fine such Action Right c. as shall first grow or come c. to them after the Fine ingrossed and Proclamations made by force of any Gift in Tail or other Cause or Matter before the Fine levyed so that they take their Action and pursue their Title within 5 years after such Right come to them c. And in this Case the Action and Right of Dower accrewed to the Wife after the Reversal of the Attainder by reason of a Title of Record before the Fine by reason of the Seizin in Fee had and Marriage made before the Fine levyed according to the meaning of the said Act. And as to the Point of Relation it was Resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some 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 but not to advance a Wrong which the Law hates or to defeat Collateral Acts which are lawful and chiefly if they concern Strangers for true it is as hath been said that as to the mean profits the same shall have relation by construction of Law till the time of the first Judgment given and that is to favour Justice and advance his Right that hath Wrong by the Erroneous Judgment But if a Stranger hath done a Trespass upon the Land in the mean time he who recovereth after the Reversal shall have an Action of Trespass against the Trespassors and if the Defendant pleads there is to such Record the Plaintiff shall shew the Special Matter and maintain his Action And for the better apprehending the Law on this Point it is to know That when any man recovers any Possession or Seizin of Land in any Action by Erroneous Judgment and afterwards the Judgment is reversed as is said before and thereupon the Plaintiff in the Writ of Errour shall have a Writ of Restitution and that Writ reciâ—es the first recovery and the Reversal of it in the Writ of Errour is That the Plaintiff in the Writ of Errour shall be restored to his Possession and Seizin Una cum exitibus thereof from the time of the Judgment c. Tibi praecipimus quod cadem A. ad plenariam seizinam tenementor praed c. restitui facias per Sacramentum proborum c. diligâ—nter inquiras ad quantum exitus proficua tenementor illor c. a tempore falsi Judicii c. usque ad Oct. Sanct. Mich. anno c. quo die Judicium illu c. revocat fuit c. et quâ—liter hoc praecept c. in Octâ—b c. By which it appears that the Plaintiff in the Writ of Errour 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 Erâ—our cannot have Remedy against a Stranger and therefore the words of the said Writ command the Sheriff to inquire of the Issues and Profits generally c. And therefore the Plaintiff in the Writ of Errour after the Reversal shall have any Action of Trespass for a Trespass mean and therewith agreeth Brian Chief Justice 4 H 7. 12. a. See Butler and Baker's Case in the third Part of my Reports good matter concerning Relations So as it was Resolved in the Case at Bar though to some intent the Reversal hath relation yet to bar the Wife of her Dower by fiction of Law by the Fâ—ne with Proclamations and five years past after the Husbands death when in truth she had not cause of Action nor any Title so long as the Attainder stood in force should be to do a Wrong by a fiction in Law and to bar the Wife who was a meer stranger and could have no Relief till the Attainder was reversed As to the other Objection That the Demandant on the Petition ought to have an Office found for hâ—r It was Resolved That it needed not in this Case because the Title of Dower stood with the Queens Title and affirmed it Also in this Case the Queen was not intitled by any Office that the Wife should be driven to traverse it for then she ought to have had an Office But in case of Dower though 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 See Sâ—dlers Case in the Fourth Part of my Reports And the Case put on the other side was utterly denied by the Court for it was Resolved That if a man seized of Lands in Fâ—e take a Wife of eight years of Age and alien his Lands and after the Wife attains to the Age of nine years and afterwards the Husband dyeth that she shall be endowed because the Title of Dower being not consummate till the death of the Husband and there being Marriage Seizin in Fee age of 9 years and the Husbands death for that cause she shall be endowed it being sufficient that the Marriage Seizin and Age happen during the Coverture So if a man seized of Lands in Fee take a Wife and after she elopes from her Husband now she is barrable of her Dower if during the elopement the Husband alien and after the Wife is reconciled she is Dowable So if a man hath Issue by his Wife and the Issue dyeth and afterwards Land discends to the Wife or she purchase Lands in Fee and dyes without other Issue the Husband for the Issue which he had before the Discent or Purchase shall be Tenant by the Courtesie But if a man taketh an Alien to Wife and afterwards he aliens his Lands and after that she is made a Denizen she shall not be endowed for she was not by her Birth capable of Dower but by her Denization it began But
in the other Case there was onely a Temporary Bar untill such Age or Reconcilement which being accomplisht the Temporary Bar ceaseth Trin. 44 Eliz. In the Kings-Bench Sprat and Heale's Case John Sprat Libelled in the Spiritual Court against Walter Heal for Substraction of Tythes the Defendant in the Spiritual Court that he had divided the Tythes from the Nine Parts And then the Plaintiff made Addition to the Libel in nature of a Replication viz. That the Defendant divided the Tythes from the Nine Parts quod praed 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 thereupon the Plaintiff obtained Sentence in the Spiritual Court and to recover thetreble value according to the Statute 2 Ed. 6. cap. 13. And thereupon Heale made a Surmise that he had divided his Tythes and that the Plaintiff ought to sue in the Spiritual Court for the double value and at the Common-Law for the treble value But it was Resolved by the whole Court That the said Division mentioned in the Libel was nnt any Division within the said Stat. 2 Ed. 6. cap. 13. for that Act provides That all the King's Subjects henceforth shall truly and justly without Fraud divide set out yield and pay all manner of other Predial Tythes in their proper Land So as when he divides them to carry them away he divides them not justly withont Fraud and therefore the same is out of the Statute And where the words of the Statute are divide set out c. their Predial Tythes c. And if any person carry away his Corn and Hay and other Predial Tythes c. And to make an evasion out of these words this Invention was devised The Owner of the Corn by Covin sold his Corn before severance to another who as Servant to the Vendee reaped it and carryed it away without any Severance pretending that neither the Vendo because he did not carry them away nor the Vendee because he had no property in them should be within that Statute But it was Resolved That the Vendor should be charged in that Case with the Penalty of the Statute for he carryeth them away and hiâ— Fraud and Covin shall not help him See 8 Ed. 3. 290. 9 H. 6. 41. 33 H. 6. 5. But it was Resolved That the Plaintiff could not sue in the Spiritual Court for the treble value but for the double value he might Hill 6 Jac. Regis In the Common-Pleas Neal and Rowses Case At a Nisi Prius in London before my Self this Term the Case was this Edward Neal informed upon the Stat. 21 H 8. c 5. Which Plea began Mich. 6 Jac. Rot. 1031. against James Rowse Commissary and Official within the Archdeaconry of Huntington in the Diocess of Lincoln and having Probate of Wills c. in the same Archdeaconry And that Nicholas Nâ—al in the 3d year of the Reign of the said King James made his Testament in Writâ—ng and made the Plaintiff his Executo and dyed possessed of Goods and Chattels to the value of 150 l. The Dâ—fâ—ndant then Commissary and Official c. the 23 Feb. 1605. at the Parish of St. Mary Bow Testament praed proba it c. ac per manuscujusdam Thomae Nâ—cke tunc Ministâ—i ipsius Jacobi Rowse c. 14 s. 10 d. pro probâ—tione c. Testament pâ—aed de eodem Edwardo c. qui tam c. Colore Officii sui praed ad tunc â—t ibid. extortive recepit et habuit contra formam Statuti With this that the said Edward qui tam c. will adde That the Writing of the said Testament according to the Rate of a peny for every ten Lines every Line containing in length ten Inches non attingebat to the Sum of 12 s. 4 d. according to the form of the Statute aforesaid c. The Defendant pleaded nihil debet and at the Nisi Prius the Evidence of two Witnesses was That the Plaintiff caused the said Testament which was in Paper to be engrossed in Parchment and the Plaintiff offered both to the said Rowse to be proved who answer'd it should if his Fees shall be paid him And the Plaintiff asking him What were his Fees and be wrote them in a Paper which amounted to 14 s. and 10 d. Whereupon the Plaintiff laid upon the Table 20 s. and desired him to take what was due to him all this being in the Officials house but he would take nothing there but appointed the Plaintiff to come into Court where he would receive his Fees And accordingly the Plaintiff coming into Court and praying to have the said Will proved the Defendant required the said Nicke to take of him for the Probation Insinuation Registring and Sealing 14 s. 10 d. and thereupon put the Seal of the Office to the same Parchment that the Plaintiff brought him c. And it was objected That this Case was out of the Statute for thereby as to this purpose it is provided viz. And where the Goods of the Testator c. amount above the value of 40 l. that then the Bishop nor Ordinary nor any of his or their Registers Scribes Praysors c. or any other their Ministers for the Probation Insinuation and Approbation of any Testament c. for the Registring Sealing Writing c. any Inventories Acquittances Fines or any thing concerning the same Probate of Testaments c. shall take c. but onely four shillings and not above Whâ—râ—of c. And the Defendants Councel objected That the Defendant did not take the 14 s. 10 d. c. For no Probate was written upon the Testament it self nor any Seal put to it but the Testament was ingressâ—d in Parchmeat and the Probate and Seal put to the Transcript and not the Testament and so out of the Statute The Statute extends onely when the Probate and Seal is put to the Testament it self c. But I conceived that the said taking the 14 s. 10 d. in the Case at Bar was clearly against the Statute for the Act is in the Negative And if the Executor requires the Testament to be ingrossed in Parchment he ought to agree with him that he requires to do it as he may But the Ordinary Official c. ought not to exact any Fee for the same as due to him for divers causes 1. Because the words of the Act are expressed for the Probation c. and for the Registring Scaling Writing 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 3. Such a Construction would make the Act idle and vain for if the Ordinary Official c. might take as much as he pleaseth for the Ingrossing done by his Ministers as a due to him
their Consciences and Oaths they can 2. That all the said Cases are clear in the Judgment of those who are Learned in the Laws that Consultation ought by the Law to be granted 1. For as to the first President the Case upon their own shewing is Three Persons joyned in one Prohibition for three several parcels of Land each having a several sort of Tything and their Interests being several they could not joyn and therefore a Consultation was granted 2. To the second the manner of Tything was alleadged to be paid to the Parson or Vicar which is uncertain 3. To the third The Modus never came in Debate but whether the Tythes did belong to the Parson or Vicar which being between two Spiritual Persons the Ecclesiastical Court shall have Jurisdiction and therewith agrees 38 E. 3. 6. 4. To the last The same was upon the matter of a Custom of a Modus Decimandi for Wooll for to pay the Tythe of Corn or Hay in Kind in satisfaction of Corn Hay and Wooll cannot be a satisfaction for the Wooll for the other two were due of common right The Bishop of London answer'd That the words of the Consultation were Quod suggestio praedicta mattriaque in eadem cohtenta minus sufficiens in lege existit c. So as materia cannot be referâ—ed to Form and therefore it ought to extend to the Moâ—us Decimandi To which I answer'd That when the Matter is insufficiently or uncertainly alleadged the Matter it self faileth and though the Matter be in truth sufficient yet if it were insufficiently alleadged the Plea wanteth matter Then the Lord Treasurer saâ—d he wondered they would produce things that made more against them then any thing had been said And when the King relyed upon the Prohibition in the Register when Land is given in discharge of Tythes the Lord Chancellor said That was not like this Case For there by the Gift of the Land the Tythes were discharged but in the Case de modo Decimandi an Annual Sum is paid yet the Land remains charged and is to be discharged by Plea de modo Decimâ—ndi All which I utterly denied For the Land was as absolutely discharged of the Tythes in casu de modo Decimandi as where Lands are given All which the King heard with patience and the Chancellor answer'd no more After the King with all his Councel had for 3 dayes together heard the Allegations on both sides he said He would maintain the Laws of England and that his Judges should have as great respect from all his Subjects as their Predecessors And for the Matter he said for any thing had been said on the Clergies part he was not satisfied and advised Us the Judges to confer among our selves and that nothing be encroached in the Ecclesiastical Jurisdâ—ction and they to keep within their Jurisdiction And this was the end of these three dayes Consultation Note Dr. Bennet in his Discourse inveighed much against the Opinion 8 E. 4. 14. and in my Reports in Wrights Case That the Ecclesiastical Judge would not allow a Modus Decimandi and said that was the Mistery of Iniquiâ—y and they would allow it The King asked for what cause it was so said in the said Books To which I answer'd That it appears in Linwood who was Dean of the Arches and a Profound Canonist who wrote in Henry the Sixth's time in his Title De decimis cap Quoniam propter c. fol. 139. b. Quod decimae soluantur 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 so great a Canonist was the cause of the said Saying in 8 E. 4. that they would not allow the said Plea de modo decimandi And it seemed to the King that that Book was a good cause for them in Edward the Fourth's time to say as they had said But I said I did not rely thereon but on the Grounds aforesaid Lastly The King said that the High Commission ought not to meddle with any thing but that which is enormous and which the Law cannot punish as Heresie Schism Incest and the like great Offences And the King thought that two High-Commissions for either Province one should be sufficient for all England and no more Mich. 39 40 Eliz. In the Kings-Bench Bedel and Sherman's Case Mich. 39 40 Eliz. Which is entred Mich. 40 Elizâ— in the Common-Pleas Rot. 699. Cantabr the Case was this Robert Bedel Gent. and Sarah his Wife Farmers of the Rectory of Litlington in the County of Cambridge brought an Action of Debt against John Sherman in custodia mariscalli c. and demanded 550 l. and declared that the Master and Fellows of Clare-Hall in Cambridge were ieized of the said Rectory in Fee in right of the said Colledge and the 10 Jun. 29 Eliz. by Indenture dâ—nised to Christopher Phesâ—nt the said Rectory for 21 years rendring 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute c. which Rent was the antient Rent who entred and was possessed and assigned all his Interest to one Matthew Bats who made his last Wâ—ll and made Sarah his Wife Executrix and dyed Sarah proved the Will and entred and was thereof possessed as Executrix and took to Husband the said Robert Beâ—el by force whereof hey in right of the said Sarah entred and were possessed and the Defendant was thâ—n Tenant and seized for his life of 300 Acres of Arable Lands in Litlington aforesaid which ought to pay Tythes to the Rector of Litlington and in 38 Eliz. the Defendant Sâ—minavit grano 200 Acres paâ—c â— c. the Tythes whereof amounted to 150 l. And the Defendant did not set forth the same from the Nine Parts but carryed them away contrary to the Statute 2 E 6 c. The Defendant pleaded Nihil debet And the Jury â—ound that the Defendant did owe 55 l. and to thâ— rest they found Nihil debet And in Arrest of Judgment divers Matters were moved 1. That Grano Seminata is too general and it ought to be expressed with what kind of Grain the same was sowed 2. It was moved If the Parson ought to have the treble value the Forfeiture being â—xoresly limited to none by the Act. or that the same beâ—ong to the Queen 3. If the same belong to the Parson if he ought to sue for it in the Ecclesiastical Court or in the King 's Temporal Court 4. If the Husband and Wife should joyn in the Action or the Husband alone and upon solemn Argument at the Barre and Bench Judgment was affirmed Trin. 7 Jac. Regis In the Court of Wards John Bayley's Case It was found by Writ of Dien clausit extremum that the said John Bayley was seized of a Messuage and of and in the 4th part of one Acre of Land late parcel of the Demesne Lands of the Mâ—nnor of Newton in the
The words whereof are Saving c. to the King c. all his Right c. of primer seizin and relief c. for Tenure in Socage or of the nature of Tenure in Socage in chief as heretofore hath bin used But there was no Custom before the Act for the King to have primer seizin c. Another President was in Pasch 37 Eliz. in the Book of Orders fol. 444. where the Case was That William Allet was seized of certain Lands in Pitsey called Lundsey holden of the Queen in Socage Tenure in chief and by Deed covenanted to stand seized to the use of his wife for life and afterwards to the use of Richard his younger Son in Fee and dyed and all was found by Office and it was Resolved ut supra But the Doubt oâ— the Case at Bar was because Henry the Feoffor had a Reversion in Fee which descended to the said William his eldest Son Trin. 7 Jacobi Regis The Case of the Admiralty A Bâ—ll 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 Pyrates upon the High Seas and shewed in certain what Pyracy they had committed That the said Sir Richard Hawkins knowing the same did receive them and abet comfort them and for Bribes suffered them to be discharged And what Offence that was the Court referred to the consideration of the two Chief Justices and Chief Baron who heard Councel of both sides divers days at Sergeants Inne And it was Resolved by them 1. That the Admirals by the Common-Law 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 13 R. 2. cap. 5. and therewith agrees 2 H. 4. c. 11. and 15 H. 2. c. 3. So also 2 H. 5. c. 6. 5 Eliz. c. 5. and this agrees with Stamf. fol. 51. 8 Ed. 2. Coron 399. See Plo. Com. 37 b. 2 R. 3. 12. 30 H. 6. 6. by Prisoit 2. It was Resolved That the Statutes are to be intended of a Power to hold Plea not of a Power to award Execution for notwithstanding the said Statutes the Judge of the Admiralty may do Execution within the Body of the County And therefore 19 H. 6. 7. the Case was W. T. at Southwark affirmed a Plaint of Trespass in the Admiralty against J. B. of a Trespass done upon the High-Sea Whereupon J. B. was cited to appear at the common day next ensuing at which day the said J. B. made default And according to the usage of the Court the said J. B. was amerced to 20 Marks Whereupon Command was made to P. as Minister of the said Court to take the Goods of the said J. B. to make agreement with the aforesaid W. T. by force of which he for the said 20 Marks took 5 Cowes and 100 Sheep in Execution for the said Money in the County of Ieicester 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 Lands In which Case these Points were Resolved 1. Though the Court of Admiralty is not a Court of Record see Brooks 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 have not Goods may arrest his Body But the great question between them was If a man commit Pyracy upon the Sea and one knowing thereof receive and comfort the Defendant in the Body of the County if the Admiral and other the Commissioners by the Act 28 H. 8. cap. 16. may proceed by Indictment and Conviction against the Receiver and Abetter the Offence of the Accessary having his beginning within the Body of the County And it was Resolved by them That such a Receiver and an Abetter by the Common-Law could not be indicted and convicted because the Common-Law cannot take Cognizance of the Original Offence being done out of the Jurisdiction of the Common-Law and where it cannot punish the Principal it cannot punish the Accessary And therefore Coke Chief Justice reported to them a Case which was in Suffolk 28 Eliz. where Butler and others upon the Sea next to the Town of Iaystoff robbed divers of the Queens Subjects of their Goods which they brought into Norfolk and there were apprehended and brought before Me then a Justice of Peace in the same County and upon Examination they confessed a cruel and barbarous Pyracy and that the Goods then in their Custody were part of the Goods which they had so robbed And I was of Opinion that in that Case it could not be Felony punishable by the Common-Law because the Original Act was not offence whereof the Common-Law taketh knowledge and then the bringing them into the County could not make the same Felony punishable by our Law Yet I committed them to the Gaol untill the coming of the Justices of the Assizes And at the next Assizes the Opinion of Wray Chief Justice and Perian Justices of Assize was agreeing with Me ut supra and thereupon they were committed to Sir Robert Southwel then Vice-Admiral for those Countieâ— and this in effect agrees with Lacies Case which see in my Reports cited in Bingham's Case 2 Rep. 93. and in Constables Case C. 5. Rep. 107. See Pyracy was Fâ—lony 40 Ass 25. by Schard where a Captain of a Ship with some English-men robb'd the Kings Subjects upon the High Seas and the saith 't was Felony in the Norman Captain and Treason in the English-men which is to be understood of Petit-Treason and therefore in that Case the Pyrates being taken the Norman Captain was hang'd and the English drawn c. hang'd as appears by the same Book See Stamford 10. Trin. 7 Jac. Regis In the Common-Pleas Pettus and Godsalve's Case In a Fine levyed Trinity Term Anno quinto of this King between John Pettus Esq Plaintiff and Richard Godsalve and others Deforceants of the Mannor of Castre c. in Norfolk where in the â—hird Proclamation upon the Foot of the Fine the said Proclamation is said to be made in the sixth year of the King that now is which ought to have been Anno quinto And the fourth Proclamation is altogether left out because upon view of the Proclamations upon Dorsis upon Record not Finis ejusdem Termini per Justiciarios remaining with the Chirographer c. it appeareth the said Proclamations were duly made therefore it was adjudged that the Errours aforesaid should be amended and made to agree as well with the Prâ—clamation upon Record of the Fine and Entry of the Book as with the other Proclamations in Dorsis c. And
this was done upon the Motion of Haughton Sergeant Mich. 7 Jac. Regis In the Court of Wards Samme's Case John Samme's being seized of Grany Mead by Copy of Court-Roll of the Mannor of Tellesham the Great of which Sir Thomas Beckingham c. and held the same of the King by Knights Service in capite Sir Thomas by Deed indented dated 22 Decemb. 1 Jacobi between him of the one part and John Sammes and George Sammes Son and Heir of John on the other part did bargain sell enfeoffe c. to John Sammes the said Mead callâ—d Grany Mead to hold to the said John Sammes and George Sams and their Heirs and Assigns to the onely use of the said John and George and their Heirs and Assigns for ever and Sir Thomas by the same Indenture covenants to make further Assurance to the said John and George c. and Livery and Seizin was deliver'd accordingly John Sammes the Father dyeth George Sammes his Son and Heir within Age the Question was Whether Geo. Sammes should be in Ward to the King or no And in this Case three Points were Resolved 1. Forasmuch as George was not named in the Premisses he cannot take by the Habendum and the Livery according to the Indenture gives nothing to George it being to him as void but though the Feoffment be good onely to John and his Heirs yet the use limited to John and George and their Heirs is good 2. If the Estate had been conveyed to John and his Heirs by the Release c. as it may well be to a Tenant by Copy of Court Roll the use limited to them is good 3. But the third was of greater doubt If in this Case the Father and Son were Joint-Tenants or Tenants in common And it was Resolved That they were Joint-Tenants and that the Son in the Case at Bar should have the said Grange by the Survivor for if at the Common-Law A. had been enfeoffed to the use of him B. and their Heirs though that he was onely seized of the Land the use was jointly to A. and B. for a use shall not be suspended or extinct by a sole Seizin or joint Seizin of the Land and therefore if A. and B. be enfeoffed to the use of A. and his Heirs And A. dyeth the entire use shall descend to his Heirs as appears 13 H. 7. 6. in Stoner's Case and by the Statute of 27 H. 8. cap. 10. Of Uses And when it was said that the Estate of the Land which the Father hath in it as to the moiety of the use which he himself hath shall not be devested out of him To that it was Answered and Resolved That that shall well be for if a man make a Feoffment in Fee to one to the use of him and the Heirs of his body in this Case for the benefit of the Issue the Statute of Uses devests the Estate vested in him by Common-Law and executes the same in himself by force of the Statute And it is to be known that an Use of Land which is but a pernency of Profits is no new thing but part of that which the Owner of the Land had and therefore if Tenant in Borough-English or a man seized on the part of his Mother make a Feoffment to another without consideration the younger Son in the one case and the Heir on the part of the Mother on the other shall have the use as they should have the Land it self if no Feoffment had been made as it is holden 5 E. 4. 7. See 4 and 5 P. and M. Dyer 163. See Fenwick and Milford's Case Trin. 31 Eliz. So in 28 H. 8. Dyer 11. the Lord Rosses Case 13 H. 7. 6. by Butler So in the Case at Bar the Use limited to the Feoffee and another is not any new thing but the pernancy of the old profits of the Land which may well be limited to the Feoffee and another jointly But if the use had been onely limited to the Feoffee and his Heirs there because there is not any Limitation to anothers person nec in praesenti nec in futuro he shall be in by force of the Feoffment And it was Resolved That Joint-Tenants might be seized to an use though they come to it at several times as if a man make a Feoffment in Fee to the use of himself and to such a Woman which he shall after marry for term of their lives or in tail or in fee in this Case if he marry a Wife after she shall take jointly with him though they take the use at several times See 17 Eliz. Dyer 340. but otherwise it is of Estates which pass by the Common-Law as 24 Ed. 3. Joynder in Action 10. If a Grant be made by Deed to one man for life the remainder to the right Heirs of A. and B. in Fee and A. hath Issue and dyeth and afterwards B. hath Issue and dyeth and then Tenant for Life dyeth in that case the Heirs of A. and B. are not Joynt-Tenants because by the death of A. the remainder as to one moiety vested in his Heir and by the death of B. the other moiety vested in his Heir at several times And upon the whole matter it was Resolved That because in the principal Use the Father and Son were Joint-Tenants by the Original Purchase that the Sonne having the Land by Survivor should not be in Ward and accordingly it was so Decreed Pasch 39 Eliz. Rot. 233. In the Kings-Bench Collins and Harding's Case The Case was A man seized of Lands in Fee and also of Lands by Copy of Court-Roll in Fee according to the Custom of the Mannor made one intire Demise of the Lands in Fee and of the Lands holden by Copy according to the Custom to Harding for years rendring one intire Rent and afterwards the Lessor surrendred the Copy-hold Land to the use of Collins and his Heirs and at another time granted by Deed the Reversion of the Free-hold Lands to Collins in Fee and Harding attorned and afterwards for the Rent behind Collins brought an Action of Debt for the whole Rent And it was objected That the reservation of the Rent was an entire Contract and by the Act of the Lessee the same cannot be apportionâ—d and therefore if one dâ—mise 3 Acres rendring 3 s. Rent and afterwards bargains and sells the reversion 〈◊〉 one Acre the whole Rent is gone because the Contract is entire c. Also the Lessee by that shall be subject to two Fealâ—â—es where he was subject but to one before To these Points it was answered and Resolved That the Contract was not entire but that the same by Act of the Lessor and Consent of the Lessee might be divided and severed for the Rent is incident to the Reversion and the Reversion is severable and by consequence the Rent also for accessorium sequitur naturam suâ— principâ—lis And as to the two Fealties to that the Lessee shall be subject though the Rent
shall be extinct for Fealâ—y is by necessity of Law incident to the Reversion but the Rent shall be divided pro rata portionis and so it was adjudged And it was also adjudged That though Collins come to the Reversion by several Conveyances and at severall times yet he might bâ—ing an Action of Debt for the whole Rent Hill 43 Eliz. Rot. 243. West and Lassels Case So Hill 42 Eliz. Rot. 108. in the Common Pleas Ewer and Moylâ—s Case 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 sum of money at a certain day upon which Issue was takeâ— and the Jury found the modus Decimandi by payment of the said sum but at another day the Case being well debated at last it was Resolved That no Consultation should be granted for though the day of payment may bâ— mistaken yet a Consultation shall not be granted where the Soitâ—tual Court hath not Jurisdiction of the Cause Taafi ld Chief Baron hath the Report of this Cause Mich. 7 Jac. Regis In an Ejectione Firmae he Writ and Declaration were of two parts of certain Lands in Hetherset and Windham in the County of Norfolk and saith not in two parts in three parts to be divided and yet it was good as well in the Declaration as the Writ for without question the Writ is good de duabus partibus generally and so is the Register See the 4 E. 3. 162. 2 E. 3. 31. 2 Ass 1. 10 Ass 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 appears 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 undivided But when any Demand is of other parts in other form there he ought to shew the same specially And according to this difference it was resolved in Jordan's Case in the Kings-Bench and accordingly Judgment was given this Term in the Caseat Bar. Mich. 7 Jac. Regis In the Common-Pleas Muttoa's Case An Action upon the Case was brought against Mutton for calling the Plaintiff Sorce and Inchanter who pleaded Not Guilty and it was found against to the Damage of six pence And it was holden by the whole Court in the Common-Pleas that no Action lyes for the laid words for Sortilegus est qui per sortes futura praenunciat Inchantry is vordis aut rebus adjunctis aliquid praeter naturam moliri See 45 Ed. 3. 17. One was taken in Southwark with the Head and Visage of a dead man and with a Book of Sorcery in his Mayl and he was brought into the Kings-Bench before Knevet Justice but no Indictment was framed against him for which the Clerks made him swear never after to commit Sorcery and he was sent to Prison and the Head and Book were burn'd at Tuthil at the Prisoners charges The antient Law was as by Britton appears that who were attainted of Sorcery were burned but the Law at this day is they shall onely be fined and imprisoned So if one call another Witch an Action will not lye But if one say She is a Witch and hath bewitched such a one to death an Action upon the Case lyes if in truth the party be dead Conjuration in the Stat. 5 Eliz. cap. 16. is taken for Invocation of any evil and wicked Spirits and the same by that Act is made Felony But Witchcraft Inchantment Charms or Sorcery is not Felony if not by them any person be killed or dyeth The first Statute made against Conjuration Witchcraft c. was the Act 33 H. 8. c. 8. and by it they were Felony in certain Cases special but that was repealed by the 1 Ed. 6. c. 12. Mich. 7 Jae Regis In the Court of Wards Sir Allen Percy 's 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 Oakes and Ashes and liberty to carry them away rendring Rent And afterwards Sir John dyed having Issue Mary his Daughter now Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for 7 years The Question was Whether Sir Allen having the immediate Inheritance in right of his Wife expectant upon the Estate for the life of Bridget and also having the Possession of the said Demise might cut down the Timber Trees Oakes and Ashes And it was objected he might well do it for it was Resolved in Sanders Case in the 5th Part of my Reports That if Lessee for years or life assigns over his term or Estate to another excepting the Mines or the Trees c. that the Exception is void But it was answered and Resolved by the two Chief Justices and the Chief Baron that in the Case at Bar the Exception was good without question because 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 cut down the Trees the Tenant for Life should be punished in Wast and should not have any remedy against the Lessee for years 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 the Case of Sanders for there the Lessee assigned over his whole Interest and therefore could not except the Mines Trees c. But when Tenant for life leases for years except the Timber Trees the same remaineth yet annexed to his Free-hold and he may command the Lessee to take them for necessary Reparations of his Houses And in the said Case of Sanders a Judgment 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 Wast in such Case shall be brought against the Assignee But in this Case without question Wast lyeth against Tenant for life and so there is a difference Mich. 7 Jac. Regis In the Court of Wards Hulme's Case The King in Right of his Dutchy of Lancaster Lord Richard Hulms seized 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 seized of Lands in Male holden of the Mesne as of his said Mannor by Knights
or Demise of his Lands Wards c. these are Contracts concerning the Kings Revenues and there it cannot be said that the Subjects sponte se obligant as to purchase any the Revenues of the King 3. It ought to be sponte super considerationem non ex mera gratia benevolentia subditi Hil. 4. Ed. 1. in Scaccario c. 4. It ought to be sponte super considerationem quae non loâ—ge reventionem seu interesse Coronae in any thing which the King hath As if a Subject give the King a Summe of Money for Licence in Mortmain or to create a Tenure of himself to have a Fair Market Park Chase or Warren in his Mannor there the Queen shall have it for the Subject did this sponte And this Resolution was reported to the King by Popham in the Gallery at White-Hall Pasch 5 Jac. Regis The Case of Forests This Term it was informed to the King that great wrongs were done in the Forest of Leicester in the County of Leicester and in his Forest of Bowland in the County of Warwick parcel of his Dutchy of Lancaster And upon this by Warrant from the King under his Signet all the Justices were assembled to resolve certain Questions to be moved concerning Forests by the Attorney of the Dutchy and the Councel of the other part which were Forests and Chases Which being matter in Fact the Judges could not give their Resolutions but by way of Directions And it was Resolved 1. That if these are Forests it will appear by matter of Record as by Eyres of Justices of Forests Swannimotes Regardors c. But the calling it a Forest in Grants c. proveth it not a Forest in Law 2. Resolved by all the Justices That if there be no Forests in Law but Free-Chases then who hath any Free-hold in them may cut his Wood growing upon it without view or Licence leaving sufficient for Covert to maintain the Kings Games so a common person having Chace in another Soil the Owner may not destroy the Covert nor Browse-wood 3. Resolved That in such a Chase the Owner by Prescription may have Common for his Sheep and Warren for his Coneys by Grant or Prescription but he must not surcharge or make Burrows in other places than hath been used from the time of which nor may he erect a new Warren without Charter 4. Resolved That who hath such a Warren may lawfully build a Lodge upon his Inheritance for preservation of his Game 5. Popham Chief Justice said That in the time of Chief Baron Bett It was adjudged in the Exchequer That a man may prescribe to cut his Wood upon his own Inheritance within a Forest though it was against the Act in the 43 Ed. 1. See the Abridgement Title Forest 21. And this was the Case of Sellenger vide 2 Ed. 2. Title Trespass fol. 9. in the time of Ed. 1. Trespass 239. â—low Com. Dyer 72. 32. 2 Ed. 4. cap. 7. that the Subject may have a Forest Consuetudo ex rationebili causa usitata privat communem Legem And it was held by some that this was but an Ordinance not an Act of Parliament Pasch 5 Jacobi Regis Case of Conspiracy This Term in the Case between Rice ap Evan ap Floyd Plaintiff and Richard Barker one of the Justices of the Grand Sessions in the County of Anglesey and others Defendants 1. Resolved by Popham and Coke Chief Justices the Chief Baron and Egerton Lord Chancellor and all the Court of Star-Chamber That when a Grand Inquest indicts one of Murder or Felony though the Party be acquitted yet no Conspiracy lyes for him against the Inâ—ictors for they are returned by the Sheriff by Law to make Inquiry of Offences upon their Oath for service of the King and Country and are compellable to serve the Law 10 Eliz. 265. And their Indictment or Verdict is matter of Record and called Verum dictum and shall not be avoided by Surmise and no Attaint lyes And with this agrees the Books in 22 Assise 77. 27 Ass 12. 21 Ed. 3. 17. 16 H. 6. 19. 47 Ed. 3. 17. 27 H. 8. 2. F. N. B. 115. a. But otherwise of a Witness for if he conspire out of the Court and after swear in Court his Oath shall not excuse his Conspiracy before for he is a private person 2. Resolved That when the party indicted is convictd of Felony by another Jury upon Not Guilty pleaded there he shall never have a Writ of Conspiracy But when he is upon his Arraignment Lâ—gitimo modo acquietatus But in the Case at Bar the Grand Jury who Indicted one William Price for the Murther of Hugh ap William the Jury who upon Not Guilty pleaded convicted him were Charged Indicted and Convict in the Star-Chamber which was never seen before For if the party shall not have a Conspiracy against the Indictors when Acquitted a multo fortiori when he is lawful Convict he shall neither charge the Grand Inquest nor Jury that convicted him But when a Jury acquits a Felon or Traytor against manifest Proof there they may be charged in the Star-Chamber ne maleficia remanerent impunita But if such Supposals shall be admitted after ordinary Judicial Proceedings it will be a means ad detrahendos Juratores deterrendos a servitio Regis 3. Resolved That Barker who was Judge of Assize and gave Judgement upon the Verdict of Death against the said W. P. and the Sheriff that executed him nor the Justices of Peace that examined the offender and the Witnesses for proof of the murther before the Indictment were not to be drawn in question in the Star-Chamber for any conspiracy nor ought to be charged there with any conspiracy or elsewhere when the party indicted is convicted or Attaint of murther or Felony And though such person were acquitted yet the Judge c. being by Commission and of Record and sworn to do Justice cannot be charged for conspiracy for that he openly did in Court as Judge Justice of Peace c. but if he hath conspired before out of Court this is extrajudiciall but subordinations of Witnesses and false malicious prosecutions out of Court c. amounts to an unlawfull conspiracy And if Judicial matters of Record which are of so high a nature that for their sublimity they import verity in themselves should be drawn in question by partiall and sinister supposall and averments of offenders there will never be an end of Causes but Controversies will be infinite Et infinitum in jure repâ—obatur 47 Ed. 3. 15. 25. Ed. 4 67. and 27 Ass pl. 12. But in a Hundred Court or other Court which is not of Record there averment may be taken against their proceedings 47 Ed. 3. 15. Also one shall never assign for Error that the Jury gave Verdict for the Defendant and the Court entred it for the Plaintiff c. Vide 1 H. 6 4. 39 H. 6. 52. 7 H. 7. 4. 11 H. 7. 28. 1 Mar. Dyer