and Seale put to the Transcript ingrossed and not to the Testament it self and so out of the Statute and the Statute extends only when the Probat and Seale is put to the Testament it self and for the ingrossing of it after the Probate no certain Fee is provided by the Statute But for the Registring of it after it is proved there is an expresse Fee in the Statute But I conceived that the said taking of the fourteen shillings ten pence in the Case at Bar was directly against the Statute For the Act is in the Negative and if the Executor requireth the Testament to be ingrossed in Parchment he ought to agree with him who he requireth to do it as he may But the Ordinary Officiall c. ought not to exact any Fee for the same of the party as a thing due to him for divers Causes 1. Because the words of the Act are expressed for the Probation c. and for the registring sealing writing praysing making of Inventories Fines giving of Acquittances c. which word writing extends expresly to this Case 2. The words are Or any thing concerning the same Probate and when the Seal and Probate is put to the Transcript the same without question concerns the Probate for the Probat is not put to any writing but only to that therefore the same concerns the Probate 3. Such a Construction should make the Act idle and vain for if the Ordinary Officiall c. might take as much as he pleaseth for the ingrossing done by his Ministers as a Fee due to him all the purview of the Statute which is penned so precisely concerning persons scil Bishops Ordinaries and all persons who have power to prove Wills and Testaments Registers Scribes Summoners Apparations or any other the Ministers as for the thing it self scil the probation insinuation approbation registring sealing writing praysing making of Inventories Fines giving of Acquittances or any other thing concerning the same should be all in vain by that evasion of Transcribing of it as well against the expresse Letter of the Act as the intention and moving of it Also the Statute saith five shillings and not above so as the manner of precise penning of it excludes all nice evasions And the Act ought to be expounded to suppresse Extortion which is a great affliction and impoverishing of the poor Subjects 4. As this Case is he annexeth the Probate and Seale to the Transcript ingrossed which the Plaintiff brought with him and offered to the Defendant so as the Case at Bar was without question And generally the Ordinary Officiall c. cannot exact or take any Fee for any thing which concerns the Probate of a Will or Testament but that which the Statute limits And afterwards the Iury found for the Plaintiff and of such opinion was Walmesley Warberton Daniel and Foster Iustices the next Term in all things But upon exception in Arrest of Iudgment for not pursuing of the Act in the Information Iudgment is not yet given c. X. Hillar Anno 6 Jacobi Regis In the Common Pleas. NOta that in this Terme a Question was moved to the Court Aide to make the Kings eldest Son Knight which was this If Tenant in Burgage should pay Ayde unto the King to make his eldest Son Knight And the Point rests upon this If the Tenure in Burgage be a Tenure in Socage For by the ancient Commmon Law every Tenant in Knights Service and every Tenant in Socage was to give to his Lord a reasonable Ayde to make his eldest Son a Knight and to marry his eldest Daughter and that was incertain at the Common Law and also incertain when the same Vide F. N. B. 82. 20. should be paid And this appeareth by Glanvil Lib. 9. cap. 8. fol. 70. who wrote in the time of Henry the second Nihil autem certum Statutum de hujusmodi auxiliis dandis vel exigendis c. sunt alii praeterea See the statute of 27 H. 8 cap 10 of uses in the Preamble concerning Aides to make the eldest Son Knight and to marry the Daughter Casus in quibus licet Dominis auxilia solvenda sunt certa forma praescripta ab hominibus suiis ut silius suus haeres fiat miles vel si primogenitam suam filiam maritaverit c. And in the beginning of the Chapter it is called Rationabile Auxilium because that then it was not certain but to be moderated by reason in respect of Circumstances And by the Preamble of the Statute of West 1. An. 3 E. 1. cap. 35. Where it is said Forasmuch as before that time reasonable Ayde to make ones Son Knight or to marry his Daughter was never put in certain nor when the same ought to be payd nor how much be taken the said Act put the said two incertainties to a certainty 1. That for a whole Knights Fee there be taken but 20 s. and of 20 l. Lands holden in Socage 20 s. and of more more and of less less according to the rate by which the Ayd it self was set certain 2. That none might levy such Ayd to make his son a Knight until his son be of the age of fifteen years nor to marry his daughter until she be of the age of seven years And Fleta who wrote after the said Act calls them rationabilia auxilia ad filium militem faciendum vel ad filiam primogenitam maritandum And by the Statute of 25 E. 1. where it is provided That no Taxes shall be taken but by common consent of the Realm there is an exception of the ancient Ayds c. which is to be intended of these Ayds due unto the King by the ancient Common Law But notwithstanding the said Act of VVestm 1. it was doubted whether the King because he is not expresly named were bound by it and therefore in the twentieth year of E. 3. the King took an Ayd of 40 s. of every Knights Fee for to make the Black Prince Knight and nothing then of Lands holden in Socage and to take away all question concerning the same the same was confirmed to him in Parliament and afterwards anno 25 E. 3. cap. 11. it is enacted That reasonable Ayd to make the Kings eldest Son Knight and to marry his eldest Daughter shall be demanded and levyed after the form of the Statute made thereof and not in other manner that is to say Of every Fee holden of the King without Mean 20 s. and no more and of every 20 l. Land holden of the King without Mean in Socage 20 s. and no more Now Littleton lib. 2. cap. 10. fol. 36. b. Burgage Tenure is where an ancient Borough is of which the King is Lord and those who have Tenements within the Borough hold of the King their Tenements that every Tenant for his Tenement ought to pay to the King a certain Rent and such Tenure is but Tenure in Socage and all Socage Land is contributary to
VVillowes all his Right Estate c. of and in the Tenements aforesaid in which c. The Plaintiff surjoyneth and saith that the said summ of five pounds six shillings eight pence c. was not rationabilis finis as the said Thomas Bradye above hath alledged c upon which the Defendant doth demur in Law And in this Case these points were resolved by Coke chief Iustice VValmesly VVarberton Daniel and Foster Iustices 1. And principally If the Fine assessed had been reasonable yet the Lords ought to have set a certain time and place when the same should be paid because the same stands upon a point of forfeiture As if a man bargains and assures Land to one and his heirs upon condition that if he pay to the Bargaines or his heirs ten pounds at such apiace that he and his heirs shall re-enter In that case because no time is limited the Bargainor ought to give notice to the Bargaines c. when he will tender the money and he cannot tender it when he pleaseth and with that agrees 19 Eliz. Dyer 354. For a man shall not lose his Land unlesse an expresse default be in him and the Bargaineein such Case is not tied to stay alwaies in the place c. So in the Caseat Bar the Copyholder is not tied to carry his Fine alwaies with him when he is at Church or at Plow c. And although that the Rejoynder is that the Plaintiff refused to pay the Fine so he might well do when the request is not lawfull nor reasonable for in all cases when the request is not lawfull nor reasonable the party may without prejudice deny the payment And he who is to pay a great Fine as a 100 l. or more it is not reasonable that he carry it alwaies with him in his Pocket and presently the Copyholder was not bound to it because that the Fine was uncertain arbitrable as it was resolved in Hulbarts Case in the fourth part of my Reports amongst the Copyhold Cases 2. It was resolved that although the Fine be incertain and arbitrable yet it ought to be secundum arbitrium boni viri And it ought to be reasonable and not excessive for all excessivenesse is abhorred in Law Excessus in re qualibet jure reprobatur Communi For the Common Law forbids any excessive distresse as it appeareth in 41 E. 3. 26. Where a man avowed the taking of sixty Sheep for 3 d. Rent and the Plaintiff prayed that he might be amerced for the Distresse And the Court who is alwaies the Iudge whether the Distresse be reasonable or excessive held that six Sheep had been a sufficient Distresse for the said Rent and therefore he was Vi. F. N. B 82 a reasonable Aid incertain untill the Statute of Glanvi lib. 9. fol. 70. 14 H. 4 9. by Hill 14 H. 4. 1. 3. amerced for so many of them as wereabove six Sheep And the Court said that if the Avowant shall have return he shall have a return but of six Sheep And this appeareth to be the Common Law for the Statute of Artieuli super Cartas extends only where a grievous Distress is taken for the Kings Debt See F. N. B. 174. a. and 27. Ass 51. 28. Ass 50. 11 H. 4. 2. and 8 H. 4. 16. c. Non Capiatur gravis Districtio c. And so if an excessive or an unreasonable Amerciament be imposed in any Court Baron or other Court which is not of Record the party shall See Glanvil lib. 9. cap. 8. Optime B. rationabilibus auxiliis ita tamen moderat secund Quantitatem feodorum suorum secundum facultates ut nemini gravidae viderentur c. Vide Bracton 84. b. cationab relev 1. quod rationem mensuram non excedat and see him there 86. optime c have Moderata Misericordia And the Statute of Magna Charta is but an affirmance of the Common Law in such point See F. N. B. 75. Nullus liber homo amercietur nisi secundum quantitatem delicti And gravis Redemptio non est exigenda And the Common Law gives an Assise of Sovient Distresse and Multiplication of Distresse found which is excessive in respect of the multiplicity of vexation And therewith agreeth 27. Ass 50 51. Non Capiatur multiplex districtio F. N. B. 178. b. And if Tenant in Dower hath Villains or Tenants at Will who were rich and she by excessive Tallages and Fines makes them poor and Beggers the same is adjudged Wast And therewith agreeth F. N. B. 61. b. 16 H. 3. Wast 135. and 16 H. 7. And see the Register Iudiciall fol. 25. b. Wast lieth in exulando Henricum Hermanum c. Villeius Quorum quilibet tenet unum Messuagium unam virgat terrae in Villinagio in praedict villa de T. by grievous and intollerable Distresses By all which it appeareth That the Common Law doth forbid intollerable and excessive oppressing and ransoming of Villains whereby of Rich they become Poor And yet it may be said that a man may do with his Villain what he pleaseth or with his Tenant at Will but the Law limits the same in a reasonable and convenient manner For it appeareth that such intollerable oppression of the poor Tenants is to the disinherizin of him in the Reversion So in the Case at Bar Although that the Fine is incertain yet it ought to be reasonable and so it appeareth by the said Custome which the Defendant hath alledged And therefore in such Case the Lord cannot take as much as he pleaseth but the Fine ought to be reasonable according to the Resolve of the Court in the said Case of Hubbard in the fourth part of my Reports 30. Vide 14 H. 4. 4. by Hill It was resolved That if the Lord and Tenant cannot agree of the Fine but the Lord demandeth more then a reasonable Fine that the same shall be decided and adjudged by the Court in which any Suit shall be for or by reason of the denying of tho Fine And the Court shall adjudge what shall be said a reasonable Fine having regard to the quality and value of the Land and other necessary circumstances which ought to appear in pleading upon a Demurrer or found by Verdict And if the Fine which the Lord or his Steward assesseth be reasonable Bracton l. 2 fo 51. Quam longuin debet esse tempus non definitur in jure sed pendet â—ex justicianorum discretiono Let the Copyholder well advise himself before he deny the payment of it And alwaies when reasonablenesse is in question the same shall be determined by the Court in which the Action dependeth As reasonable time 21 H. 6. 30. 22 E. 4. 27. 50. 29 H. 8. 32. c. So if the Distresse be reasonable and the like c. It was resolved That the said Fine in the Case at the Bar was unreasonable viz. To demand for a Cottage and an acre of Pasture five pounds six
Ayd and therefore a Tenant in Burgage shall be contributary to it And it is to be observed and so it appeareth in the Register fo 1 2. That in a Writ of Right if the Lands or Tenements are holden by Knights service it is said Quas clamat tenere de te per servitium unius feodi Militis and if the Lands be holden in Socage the Writ is Quis clamat tenere de te per liberum servitium unius libri cumini c. so as Socage Tenure in all Writs is called Liberum servitium And by the Writ of Ayd Fitz. N. B. 82. it is commanded to the Sheriff Quod juste c. facias habere A. rationabile Auxilium de Militibus liberis tenentibus suis in Baliva tua c. so as the same Writ makes a distinction of Knights service by the name of Militibus and of Socage by the name of Liberis tenentibus And in the Register fol. 2. 6. the Writ of Right for a House in London which is holden of the King in Burgage is in these words Rex Majori vel Custodi Vicecom London Praecipimus vobis quod sine dilatione teneatis G. de uno Messuagio c. in London quae clamat tenere de nobis per liberum servitium c. which proves That Tenure in Burgage is a Tenure in Socage But it appeareth by the Books of Avowry 26. and 10 H. 6. so Ancient Demesne 11. it was resolved by all the Iustices in the Exchequer Chamber That no Tenure should pay for a reasonable Ayd to marry the Daughter or to make the Son a Knight but Tenure by Knights service and Tenure by Socage but not Tenure by Grandserjanty nor no other and 13 H. 4. 34. agrees to the Case of Grandserjanty and by the said Books it appeareth that Tenure by Frankalmoign and Tenure by Divine Service shall not pay for they are none of them but Tenure in Burgage is a Tenure in Socage and therefore the said Books prove that such a Tenure shall pay Ayd And I conceive that Tenure by Petit-Serjanty shall pay also Ayd for Litt. lib. 2. cap. 8. fo 36. says That such a Tenure is but Socage in effect but Fitz. N. B. 83. a. avoucheth 13 H. 4. 34. That Tenant by Petit-Serjanty shall not pay Ayd but the Book onely extends to Grand-Serjanty If the Houses in a City or Borough are holden of the King in Burgage and the King grant the Seignories to one and the City or Borough to another to hold of him then those Houses shall not be contributary to Ayd for they are not immediately holden of the King as is required by the Law And I conceive that he who holdeth a Rent of the King by Knights service or in Socage shall pay Ayd for the words of the Act of VVestm 1. cap. 35. are From henceforth of a whole Knights Fee onely be taken 20 s. of 20 l. Land holden in Socage 20 s. and the Mean is said in supposition of Law to hold the Land and it is not reason that the Tenant by his Feoffment before the Statute should prejudice the Lord of his benefit And although it was said that a Tenure in Socage in servitium Socae as Littleton saith and the same cannot be applyed to Houses to that it was answered That the Land upon which the House is built or if the House falleth down may be made arable and be ploughed And a Rent may be holden in Socage and yet it is not subject to be plowed but by a possibility after words escheat to the Lord of the Land See Huntington Polidor Virgill and Hollinsheds Chronicle fol. 35. 15 H. 4. Ayd was levyed by Hen. 7. 1. to marry Mawd his eldest Daughter to the Emperor viz. 3 l. of every Hide of Land c. And see The Grand Customary of Normandy cap. 35. there is a Chapter of Ayds whereof the first is to make the eldest Son of his Lord a Knight and the second to marry his eldest Daughter And see a Statute made in anno 19 H. 7. which begineth thus Item praefati Communes in Parliamento praedicto existentes ex assensu duorum Spiritualium Temporalium in dicto Parliamento similiter existen concesserunt praefato Regi quandà m pecuniae summam in loco duorum rationabilium auxiliorum suae Majestatis de jure debit tam ratione creationis nobilissimi filii sui primogeniti bonae memoriae Domini Arthuri nuper Principis VValliae quam ratione Matrimonii traductionis nobilissimi Principis Margaritae filiae suae primogenit quam etiam multiplicare pro Regni sui perpetua pace tranquillitate c. certis viis modis levand cujus quidem concessionis Tenor c. sequitur in haec verba For as much as the King our Soveraign Lord is rightfully intituled to have two reasonable Ayds according to the Laws of this Land the one for the making Knight the right honorable his first begotten Son Arthur late Prince of VVales deceased and the other for that the marriage of the Right Noble Princess his first begotten Daughter Margaret now marryed to the King of Scots and also that his Highness hath born great and inestimable charges for the defence of the Realm c. considering the premisses And if the same Ayds should be levyed and had by reason of their Tenures according to the ancient Laws of the Land should be to them doubtful and uncertain and great unquietness for the search and not knowledg of their several Tenures and their Lands chargeable to the same have made humble Petition unto his Highness graciously to accept and take of them the sum of 40000 l. as well in recompence and satisfaction of the said two Ayds as for the said great and inestimable charges c. as is aforesaid The King to eschew and avoyd the great vexation troubles and unquietness which to them should have ensued if the said Ayds were levyed after the ancient Laws and for the good and acceptable services of the Nobles of this Realm and other his faithful Subjects in their own persons and otherwise done to his Grace and thereby sustained manifold costs and charges to his great honor and pleasure doth pardon the said two Ayds and accepteth the offer aforesaid and that the poorest of his said Commons should not be contributary to the said sum of 40000 l. hath pardoned 10000 l. parcel thereof and doth accept of 30000 l. in full satisfaction c. And that the Cities and Boroughs Towns and places being in every Shire not by themselves accountable in the Exchequer for Fifteens and Tenths be chargeable with the Shires c. And all Cities and Boroughs not contributary c. but accountable by themselves c. shall be chargeable by themselves towards the payment of the said 30000 l. with such sums as under the Act particularly appear c. And there under the Act appear the several Taxations of every several County City
the plea for the same is no part of the suggestion which onely is the substance of the plea and therefore the Modus Decimandi is proved by two Witnesses according to the Statute of 2 E. 6. cap. 13. and not the refusal which proveth that the Modus Decimandi is onely the matter of the suggestion and not the refusal 5. All the said five matters of Discharge of Tythes mentioned in the said Branch of the Act of 2 E. 6. being contained within a suggestion ought to be proved by two Witnesses and so have been always from the time of the making of the said Act and therefore the Statute of 2 E. 6. clearly intended that Prohibitions should be granted in such causes 6. Although that they would allow bona fide de Modo Decimandi without refusal yet if the Parson sueth there for Tythes in kinde when the Modus is proved the same being expresly prohibited by the Act of 2 E. 6. a Prohibition lieth although the Modus be spiritual as appeareth by the said Book of 4 E. 4. 37. and other the Cases aforesaid And afterwards in the third day of debate of this case before his gracious Majesty Dr. Bennet and Dr. Martin had reserved divers consultations granted in Causa Modi Decimandi thinking that those would make a great impression in the Opinion of the King and thereupon they said That Consultations were the Iudgments of Courts had upon deliberation whereas Prohibitions were onely granted upon surmises And they shewed four Presidents One where three joyntly sued a Prohibition in the case of Modo Decimandi and the Consultation saith Pro eo quod suggestio materiaque in eodem contenta minus sufficiens in Lege existit c. 2. Another in Causa Modo Decimandi to be payd to the Parson or Vicar 3. Where the Parson sued for Tythes in kinde and the Defendant alledged Modus Decimandi to be payd to the Vicar The fourth where the Parson libelled for Tythe Wool and the Defendant alledged a custom to reap corn and to make it into sheaves and to set forth the tenth sheaf at his charges and likewise of Hay to sever it from the nine cocks at his charge in full satisfaction of the Tythes of the Corn Hay and Wool To which I answered and humbly desired the Kings Majesty to observe that these have been reserved for the last and center point of their proof And by them your Majesty shall observe these things 1. That the Kings Courts do them Iustice when with their consciences and oaths they can 2. That all the said Cases are clear in the Iudgment of those who are learned in the Laws that Consultation ought by the Law to be granted For as unto the first president the case upon their own shewing appeareth to be Three persons joyned in one Prohibition for three several parcels of Land each of which had a several manner of Tything and for that cause they could not joyn when their interests were several and therefore a Consultation was granted As to the second president The manner of Tything was alledged to be payd to the Parson or Vicar which was altogether uncertain As to the third president The Modus never came in debate but whether the Tythes did belong to the Parson or Vicar which being betwixt two spiritual persons the Ecclesiastical Court shall have Iurisdiction and therewith agreeth 38 E. 3. 6. cited before by Bacon and also there the Prior was of the Order of the Cistertians for if the Tythes originally belonged to the Parson any recompence for them shall not bar the Parson As unto the last president the same was upon the matter of a Custom of a Modus Decimandi for Wool for to pay the Tythe of Corn or Hay in kinde in satisfaction of Corn Hay and Wool cannot be a satisfaction for the Wool for the other two were due of common right And all this appeareth in the Consultations themselves which they shew but understand not To which the Bishop of London said that the words of the Consultation were Quod suggestio praedicta materiaque in eadem contenta minus sufficiens in Lege existet c. so as materia cannot be referred to form and therefore it ought to extend to the Modus Decimandi To which I answered That when the matter is insufficiently or uncertainly alledged the matter it self faileth for matter ought to be alledged in a good sentence and although the matter be in truth sufficient yet if it were insufficiently alledged the plea wanteth matter And the Lord Treasurer said openly to them that he admired that they would alledg such things which made more against them then any thing which had been said And when the King relied upon the said Prohibition in the Register when Land is given in discharge of Tythes the Lord Chancellor said that that was not like to this case for there by the gift of the Land in discharge of Tythes the Tythes were actually discharged but in the case De Modo Decimandi an annual sum is payd for the Tythes and the Land remains charged with the Tythes but ought to be discharged by plea de Modo Decimandi All which was utterly denyed by me for the Land was as absolutely discharged of the Tythes in casu de Modo Decimandi when an annual sum ought to be payd as where Land is given For all the Records and presidents of Prohibition in such cases are That such a sum had been always c. payd in plenam contentationem satisfactionem exonerationem omnium singularium Decimarum c. And although that the sum be not payd yet the Parson cannot sue for Tythes in kind but for the mony for as it hath been said before the Custom and the said Acts of Parliament where there is a lawful manner of Tything hath discharged the Lands from Tythes in kinde and prohibited that no suit shall be for them And although that now as it hath been said the Parsons c. may sue in the Spiritual Court pro Modo Decimandi yet without question at the first the annual payment of mony was as Temporal as annual profits of Lands were All which the King heard with much patience And the Lord Chancellor answered not to that which I had answered him in c. And after that his most excellent Majesty with all his Councel had for three days together heard the allegations on both sides He said That he would maintain the Law of England and that his Iudges should have as great respect from all his Subjects as their predecessors had had And for the matter he said That for any thing that had been said on the part of the Clergy that he was not satisfied and advised us his Iudges to confer amongst our selves and that nothing be encroached upon the Ecclesiastical Iurisdiction and that they keep themselves within their lawful Iurisdiction without unjust vexation and molestation done to his Subjects and without delay or hindering
Trees and Clay c. which he had not but as things annexed to the Land and therefore he could not have them when he had departed with his whole interest nor he could not take them either for Reparations or otherwise But when Tenant for life Leaseth for years except the Timber Trees the same remaineth yet annexed to his Freehold and he may command the Lessee to take them for necessary Reparations of the Houses And in the said case of Saunders a Iudgment is cited between Foster and Miles Plaintiffs and Spencer and Bourd Defendants That where Lessee for years assigns over his term except the Trees that Waste in such case shal be brought against the Assignee but in this case without question Waste lieth against the Tenant for life and so there is a difference c. XXVIII Mich. Term 7 Jacobi Regis In the Court of Wards Hulmes Case THe King in the right of his Dutchy of Lancaster Lord Richard Hulm seised of the Mannor of Male in the County of Lancaster holden of the King as of his Dutchy by Knights service Mesne and Robert Male seised of Lands in Male holden of the Mesn as of his said Mannor by Knights service Tenant Richard Hulm dyed after whose death 31 Hen. the eight it was found that he dyed seised of the said Menalty and that the same descended to Edward his Son and Heir within age and found the Tenure aforesaid c. And during the time that he was within age Robert Male the Tenant dyed after which in anno 35 H. 8. it was found by Office That Robert Male dyed seised of the said Tenancy peravail and that the same descended to Richard his Son and Heir within age and that the said Tenancy was holden of the King as of his said Dutchy by Knights service whereas in truth the same was holden of Edward Hulm then in Ward of the King as of his Menalty for which the King seised the Ward of the Heir of the Tenant And afterwards anno quarto Jacobi Regis that now is after the death of Richard Male who was lineal Heir of the said Robert Male by another Office it was found That the said Richard dyed seised of the said Tenancy and held the same of the King as of his Dutchy by Knights service his Heir within age whereupon Richard Hulm Cosin and Heir of the said Richard Hulm had preferred a Bill to be admitted to his Traverse of the said Office found in quarto Jacobi Regis And the Question was Whether the Office found in 35 H. 8. be any estoppel to the said Hulm to Traverse the said last Office or if that the said Hulm should be driven first to Traverse the Office of 35 H. 8. And it was objected That he ought first to Traverse the Office of 35 H. 8. as in the Case of 26 E. 3. 65. That if two Fines be levyed of Lands in ancient Demesn the Lord of whom the Land is holden ought to have a Writ of Deceit to reverse the first Fine and in that the second Fine shall not be a Bar And that the first Office shall stand as long as the same remains in force To which it was answered and resolved by the two Chief Iustices and the Chief Baron and the Court of Wards That the finding of an Office is not any estoppel for that is but an enquest of Office and the party grieved shall have a Traverse to it as it hath been confessed and therefore without question the same is no estoppel But when an Office is found falsly that Land is holden of the King by Knights service in capite or of the King himself in Socage if the Heir sueth a general Livery now it is holden in 46 E. 3. 12. by Mowbray and Persey that he shall not after add that the Land is not holden of the King but that is not any estoppel to the Heir himself who sueth the Livery and shall not conclude his Heir for so saith Mowbray himself expresly in 44 Assis pl. 35. That an Estoppel by suing of Livery shall estop onely himself the Heir during his life And in 1 H. 4. 6. b. there the case is put of express confession and suing of Livery by the issue in tayl upon a false Office and there it is holden that the Iurors upon a new Diem clausit extremum after the death of such special Heir are at large according to their conscience to finde that the Land is not holden c. for they are sworn ad veritatem dicendum and their finding is called veredictum quasi dictum veritatis which reason also shall serve when the Heir in Fee-simple sueth Livery upon a false Office and the Iurors after his death ought to finde according to the truth So it is said 33 H. 6. 7. by Laicon that if two sisters be found Heirs whereof the one is a Bastard if they joyn in a Suit of Livery she which joyneth with the Bastard in the Livery shall not alledg Bastardy in the other but there is no Book that saith that the Estoppel shall endure longer then during his life and when Livery is sued by a special Heir the force and effect of the Livery is executed and determined by his death and by that the Estoppel is expired with the death of the Heir but that is to be intended of a general Livery but a special Livery shall not conclude one But as it is expressed the words of a general Livery are When the Heir is found of full age Rex Escheatori c. Scias quod cepimus homigium I. filii haeredis B. defuncti de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus c. And when the Heir was in Ward at his full age the Writ of Livery shall say Rex c. Quia I. filius haeres B. defuncti qui de nobis tenuit in capite aetatem suam coram te sufficienter probavit c. Ceperimus homagium ipsius I. de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus ut supra c. Which Writ is the Suit of the Heir and therefore although that all the words of the Writ are the words of the King as all the Writs of the King are and although that the Livery be general de omnibus terris tenementis de quibus B. pater I. tenuit de nobis in capite die quo obiit without direct affirmation that any Mannor in particular is holden in capite and notwithstanding that the same is not at the prosecution of the Kings Writ and no Iudgment upon it yet because the general Livery is founded upon the Office and by the Office it was found That divers Lands or
suam c. succidit for Custom hath fixed it to his Estate against the Lord and the Copyholder in this case hath as great an interest in the Timber Trees as he hath in his Messuage which he holdeth by Copy and if the Lord breaketh or destroyeth the House without question the Copyholder shall have an Action of Trespass against his Lord Quare Domum fregit and by the same Reason for the Timber Trees which are annexed to the Land and which he may take for the Reparation of his Copyhold Messuage and without which the Messuage cannot stand Trinit 40 Eliz. Rot. 37. in the Kings-Bench between Stebbing and Grosener The custom of the Mannor of Netherhall in the County of Suffolk was that every Copyholder might lop the Pollengers upon his Copyhold pro ligno combustibili c. And the Lord of the Mannor cut down the Pollingers being upon the Plaintiffs Copy-hold upon which he brought his Action upon the case because that the lops of the Trees in such case did belong to the Copyholder and they were taken by the Lord. See Taylors case in the fourth part of my Reports 30 and 31. and see 5 H. 4 2. Guardian in Knight-service who hath Custodiam terrae shall have an Action of Trespass for cuting down the Trees against the Heir who hath the inheritance Vide 2 H. 4. 12. A Copyholder brought an Action of Trespass Quare clausum fregit arbores succidit and see 2 E. 4. 15. A Servant who is commanded to carry goods to such a place shall have an Action of Trespass or Appeal 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. It after taking the goods the owner hath his goods again yet he shall have a general Action of Trespass and upon the evidence the damages shall be mitigated so is the better Opinion in 11 H. 4. 23. That he who hath a special property of the goods at a certain time shall have a general Action of Trespass against him who hath the general property and upon the evidence damages shall be mitigated but clearly the Baylee or he who hath a special property shall have a general Action of Trespass against stranger and shall recover all in damages because that he is chargeable over See 21 H. 7. 14. b. acc And it is holden in 4 H. 7. 3. That Tenant at sufferance shall have an Action of Trespass in respect of the possession and if the Defendant plead Not-guilty but he cannot make title 30 H. 6. Trespass 10. 15 H. 7. 2. The King who hath profits of the Land by Out-lawry shall have an Action of Trespass or take goods damage-feasants 35 H. 6. 24. 30 H. 6. Tresp 10. c. Tenant at will shall have an Action of Trespass 21 H. 7. 15. and 11 H. 4. 23. If a man Bayl goods which are taken out of his possession if the Baylee recover in Trespass the same shall be a good Bar to the Baylee 5 H. 4. 2. In a Writ of Waste brought against Tenant for life and assigned the Waste in cutting down of Trees the Defendant pleaded in Bar that the Plaintiff himself cut them and Culpeper the Serjeant of the Plaintiff objected against it that it should be no Plea because the Defendant had not any thing in the Freehold no more then a meer stranger and if a stranger had cut down the same Trees he should be chargeable in Waste Also in this case we should be at a mischief if we should not recover against him for if at another time he bringeth an Action of Trespass against us he shall recover damages against us for the cutting id est for the value of the Trees and yet it was holden by the Court that the same was a good Bar And it was said by the Court that the Plaintiff was not at any mischief in this case for in as much as the Defendant shall have advantage now to discharge himself of Waste against the Plaintiff upon this matter he shall be barred for ever of his Action of Trespass scil to recover the value of the Trees which was the mischief objected by Culpeper But without question he shall have an Action of Trespass Quare clausum fregit for the Entry of the Lessor and for the cutting of the Trees but he shall not recover the value of the Trees because he is not chargeable over but for the special loss which he hath scil for the loss of the Pawnage and of the shadow of the Trees c. See Fitz. Trespass ultimo in the Abridgment And afterwards the same Term Iudgment was given on the principal case for the Plaintiff XXXIV Easter Term 8 Jacobi In the Common-Pleas THe Parishioners of St. Alphage in Canterbury by custom ought to choose the Parish-Clark whom they chose accordingly The Parson of the Parish by coulor of a new Canon made at the Convocation in the _____ year of the King that now is which is not of force to take away any Custom drew the Clark before Doctor Newman Official of the Archbishop of Canterbury to deprive him upon the point of the right of Election and for other causes and upon that it was moved at the Bar to have a Prohibition And upon the hearing of Doctor Newman and himself and his Councel a Prohibition was granted by the whole Court because the party chosen is a meer temporal man and the means of choosing of him scil the custom is also meer temporal so as the Official cannot deprive him but upon occasion the Parishoners might displace him And this Office is like to the Office of a Churchwarden who although they be chosen for two years yet for cause they may displace them as it is holden in 26 H. 8. 5. And although that the execution of the Office concerneth Divine Service yet the Office it self is meer temporal See 3 E. 3. Annuity 30. He who is Clark of a Parish is removable by the Parishioners See 18 E. 3. 27 A gift in tayl was made of the Serjanty or Clarkship of the Church of Lincoln and there adjudged that the Office is temporal and shall not be tryed in the Ecclesiastical Court but in the Kings Court And it is to be known that the deprivation of a man of a temporal Office or place is a temporal thing upon which no Appeal lyeth by the Statute of 25 H. 8. but an Assise as in 4 Eliz. Dyer 209. The President of Magdalen Colledg in Oxford was deprived of the Bishop of Winchester their Visitor He shall not have an Appeal to the Delegates for the Deprivation is temporal and not spiritual but he may have an Assise and therewith agreeth the Book of 8 Ass Siracses Case But if a Dean of a Cathedral Church of the Patronage of the King be deprived before the Commissioners of the King he may appeal to the Delegates within the said Act of 25 H. 8. For a Deanry is a spiritual promotion and not temporal and before
Curia nostra non alibi tractari sicut praedict est cedere poterit attentetis sive attentim faciatis quovismodo By which also it appeareth That Tithes may be discharged and that the matter of discharge ought to be determined by the Common Law and not in the Spirituall Court And it is to be observed That in the said Iudgment nor in the Register any averment is taken of the value of the thing given in satisfaction of the Tithes Also by the Act of Circumspecte agatis made 13 E. 1. It is said S. Rector petat versus parochianos oblationes decimas debitas seu consuetas c. which proves that there are Tithes due in kind and other Tithes due by Custome as a Modus Decimandi c. And yet it is resolved in 19 E. 3. Jurisdiction 28. That the Ordinance of Circumspecte agatis is not a Statute and that the Prelates made the same and yet then the Prelates acknowledged That there were Tithes due by Custome which is a Modus Decimandi By which it appeareth also That Tithes by Custome may be altered into another thing So where a man grants a parcel of his Mannor to a Parson in Fee to be quit of Tithes and makes an Indenture and the Parson with the assent of the Ordinary without the Patron grants to him that he shall be quit of Tithes of his Mannor for that parcell of Land Afterwards if he or his Assignee be sued in the Spirituall Court for Tithes of his Mannor he or his Assignee shall have a Prohibition upon that Deed. And if that Deed was made before time of memory and he hath so continued to be quit of Tithes he shall have a Prohibition upon that Deed if he be sued for the Tithes of that Mannor or of any parcell of the same upon that matter shewed See 8 E. 4. 14. F. N. B. 41. g. vi 3. E. 3. 17. 16 E. 3. t. Annuity 24. 40 E. 3. 3. b. and F. N. B. 152. And therefore if the Lord of a Mannor hath alwaies holden his Mannor discharged of tithes and the Parson had before time of memory or in ancient times divers Lands in the same Parish of the Gift of the Lord of which the Parson is seised at this day in Fee in respect of which the Parson nor any of his Predecessors ever had received any tithes of the said Mannor If the Parson now sueth for tithes of the Mannor the Owner of the Mannor may shew that speciall matter and that the Parson and his Successors time out of mind have holden those Lands c. of the Gift of one who was Lord of the said Mannor in full satisfaction of the tithes of the said Mannor And the proof that the Lord of the Mannor gave the Lands that tithes should never be paid at this day is good evidence to prove the surmise of the Prohibition And so of the like and 19 E. 3. t. Jurisdiction 28. it is adjudged That Title of Prescription shall be determined in the Kings Court And therefore a Modus Decimandi which accrueth by Custome and Prescription in the Kings Court And it appeareth by the Statute of 6 H. 4. cap. 6. That the Pope by his Bulls discharged divers from payment of tithes against which the Act of Parliament was made and by the Statute of 31 H. 8. cap. 13. That the Possessions of Religious persons given to the King were discharged of payment of tithes in certain Cases and by the Statute of 32 H. 8. cap. 7. it is provided That all and singular persons shall divide set out yeild and pay all and singular tithes and Offerings aforesaid according to the lawfull customes and usages of the Parishes and places where such tithes or Duties shall come or immediatly arise or be due Provided alwaies and be it enacted That no person or persons shall be sued or otherwise compelled to pay any manner of tithes for any Mannors Lands Tenements or Hereditaments which by the Laws or Statutes of this Realm are discharged or not chargable with the payment of any such tithes And the Statute of 2 E. 6. cap. 13. Enacts That every of the Kings Subjects shall from henceforth justifie and truly without fraud or guile divide set out c. all manner of their prediall tithes in their proper kind as they will rise and happen in such manner and form as hath been of right yeilded and paid within forty years next before the making of this Act or of Right or Custome ought to be paid So as it appeareth by this that tithe is due of Right and by Custom And also in the same Act there is a Proviso in these words Provided alwaies and be it enacted That no person shall be sued or otherwise compelled to yeild give or pay any manner of tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledge or Prescription are not chargable with the payment of any such tithes or that he discharged by any composition reall so as it appeareth by that Act that one may be discharged from the payment of tithes five manner of waies 1. By the Law of the Realm that is the Common Law As Tithes shall not be paid of Coals Quarries Brick Tiles c. F. N. B 53. and Register 54 Nor of the after Pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2. By the Statutes of the Realm As by the Statute of 31 H. 8. cap. 13. the Statute of 45 E. 3. c. 3. By Priviledge as those of S. Johns of Jerusalem in England The Cistertians Temptors c. as it appeareth by 10 H. 7. 277. Dyer 4. By Prescription As by Modus Decimandi or an annuall Recompence in satisfaction of them as appeareth before by the Authorities aforesaid 5. By reall Composition as appeareth by the said Writ cited out of the Register And so you have one or two examples for many others which may be added of these five manners of discharges of Tithes And by them all it appeareth That a man may be discharged of the payment of Tithes as before is said So as now it apparently appeareth by the Laws of England both Ancient and Modern That a Lay-man ought prescribe in modo Decimandi but not in non Decimando and that in effect agrees with the Opinion of Thomas Aquinas in his Secunda secundae Quaest 86. ar ultimo For there he saith Quod in veteri lege praeceptum de solutione Decimarum partim erat morali inditum ratione naturali quae dictat Quod iis Qui Divino Cultui ministrant ad salutem totius populi necessaria victui debent ministr juxta illud 1 Cor. 9. Quis militat c. Who goeth to War at his own charges c. Partim autem erat judiciale ex Divina institutione robur habens scil Quantum ad determinationem certae partis And all that
tenementorum per eundem B. dicto medio tempore percept sine dilatione haberi sacias Et qualiter hoc praeceptum nostrum fuerit execut constare facias c. in Octab. c. By which it appeareth That the Plaintiff in the Writ of Error shall have restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Error cannot have any remedy against any stranger but only against him who is party to the Writ of Error and therefore the words of the said Writ command the Sheriff to enquire of the Issues and Profits generally between the Reversal and the Iudgment with all which he who recovers shall be charged and as the Law chargeth him with all the mean profits so the Law gives to him remedy notwithstanding the Reversal against all Trespassors in the interim for otherwise the Law should make a construction by relation to discharge them who are wrong doers and to charge him who recovers with the whole who peradventure hath good right and who entereth by the Iudgment of the Law which peradventure is reversed for want of form or negligence or ignorance of a Clark And therefore as to that purpose the Iudgment shall not be reversed ab initio by a Fiction of Law but as the truth was the same stands in force until it was reversed and therefore the Plaintiff in the Writ of Error after the Reversal shall have any Action of Trespass for a Trespass mean because he shall recover all the mean profits against him who recovered nor he recovereth after shall be barred of his Action of Trespass for a Trespass mean by reason that his recovery is reversed because he shall answer for all the mean profits to the Plaintiff in the Writ of Error and therewith agreeth Brian Chief Iustice 4 H. 7. 12. a. Note Reader If you would understand the true sence and Iudgment of the Law it is needful for you to know the true Entries of Iudgments and the Entries of all proceedings in Law and the manner and the matter of Writs of Execution of such Iudgments See Butler and Bakers Case in the third part of my Reports good matter concerning Relations So as it was resolved in the Case at Bar Although that to some intent the Reversal hath relation yet to bar the Wife of her Dower by Fiction of Law by the Fine with proclamations and five years past after the death of her Husband when in truth she had not cause of Action nor any right or title so long as the Attainder stood in force should be to do wrong by a Fiction of Law and to bar the Wife who was a meer stranger and who had not any means to have any Relief until the Attainder was reversed And as unto the other point or Objection that the Demandant on the Petition ought to have an Office found for her it was resolved that it needed not in this case because that the title of Dower stood with the Queens title and affirmed it otherwise if the title of the Demandant in the Petition had disaffirmed the Queens title also in this Case the Queen was not entituled by any Office that the Wife should be driven to traverse it c. for then she ought to have had an Office to finde her title But in Case of Dower although that Office had been found for the Queen which doth not disaffirm the title of Dower in such case the Wife shall have her Petition without Office because that Dower is favored in Law she claiming but onely for term of life and affirming the title of the Queen See the Sadlers Case in the fourth part of my Reports And the case which was put on the other side was utterly denyed by the Court for it was resolved That if a man seised of Lands in Fee taketh a Wife of eight years of age and alieneth his Lands and afterwards the Wife attaineth to the age of nine years and afterwards the Husband dyeth that the Wife shall be endowed For although at the time of the alienation the Wife was not dowable yet for as much as the marriage and seisin in Fee was before the alienation and the title of Dower is not consummate until the death of her Husband so as now there was marriage seisin of Fee age of nine years during the Coverture and the death of the Husband for that cause she shall be endowed For it is not requisite that the marriage seisin and age concur together all at one time but it is sufficient if they happen during the Coverture So if a man seised of Lands in Fee take a Wife and afterwards she elopes from her Husband now she is barrable of her Dower if during the Elopement the Husband alieneth and after the Wife is reconciled the Wife shall be endowed So if a man hath issue by his Wife and the issue dyeth and afterwards Land descendeth to the Wife or the Wife purchaseth Lands in Fee and dyeth without any other issue the Husband for the issue which he had before the Discent or purchase shall be Tenant by the curtesie for it is sufficient if he have issue and that the Wife be seised during the Coverture although that it be at several times But if a man taketh an Alien to Wife and afterwards he alieneth his Lands and afterwards she is made a Denizen she shall not be endowed for she was absolutely disabled by the Law and by her birth not capable of Dower but her capacity and ability began onely by her Denization but in the other case there was not any incapacity or disability in the person but onely a temporary Bar until such age or reconcilement which being accomplished the temporary Bar ceaseth As if a man seised of Lands in Fee taketh a Wife and afterwards the Wife is attainted of Felony and afterwards the Husband alieneth and afterwards the Wife is pardoned and afterwards the Husband dyeth the Wife shall be endowed for by her birth she was not uncapable but was lawfully by her marriage and seisin in Fee entituled to have Dower and therefore when the impediment is removed she shall be endowed VIII Trinit 44 Eliz. In the Kings-Bench Sprat and Heals Case JOhn Sprat Libelled in the Spiritual Court against Walter Heal for Tythes Covin substraction of Tythes the Defendant in the Spiritual Court pleaded that he had divided the Tythes from the nine parts and then the Plaintiff made addition to the Libel in the nature of a Replication scil That the Defendant divided the Tythes from the nine parts quod praedict the Plaintiff non fatetur sed prorsus diffitetur yet presently after this pretended division in fraudem legis he took and carryed away the same Tythes and converted them to his own use and the Plaintiff thereupon obtained sentence in the Spiritual Court and to recover the treble value according to the Statute of 2 E. 6. cap. 13. And thereupon Heal made a
of them to the use of himself for the term of his life and after to the use of his eldest sonne and to such a woman which he shall marry and to the heirs males of the body of the son and afterwards the father dieth and after the son taketh a wife and dieth if the wife shall take an Estate for life and the doubt was because the wife of the son was not within the Considerations and the use was limited to one who was capable scil the son and to another who was not capable and therefore the son should take an estate in tail executed But it was resolved by the said two chief Iustices and chief Baron That the Wife should take well enough and as to the first Reason they resolved That the Wife was within the consideration for the consideration was for the advancement of his posterity and without a Wife the Son cannot have posterity also when the Wife of the Son is sure of a Ioynture the same is for the advancement of the Son for thereby he shall have the better marriage And as to the second it was resolved That the Estate of the Son shall support the use to the Defendant and when the contingent happeneth the Estate of the Son shall be changed according to the limitation scil to the Son and the woman and the Heirs of the body of the Son And so it was resolved in the Kings-Bench by Popham chief Iustice and the whole Court of the Kings-Bench in the Reign of Queen Eliz. in Sheffields Case for both points XVIII Trinit 7 Jacobi Regis In the Court of Wards Sparies Case JOhn Spary seised in fee in the right of his Wife of Lands holden of the Crown by Knights service had issue by her and 22 Decemb. anno 9 Eliz. aliened to Edward Lord Stafford the Wife dyed the issue of full age the Lands continue in the hands of the Alienee or his Assigns and ten years after the death of the Father and twelve years after the death of the Mother Office is found 7 Jacobi finding all the special matter after the death of the Mother the Question was Whether the mean profits are to be answered to the King and it was resolved by the said two chief Iustices and the chief Baron That the King should not have the mean profits because that the Alienee was in by title and until Entry the Heir hath no remedy for the mean profits but that the King might seise and make Livery because that the Entry of the Heir is lawful by the Statute of 32 H. 8. XIX Trinit 7 Jacobi Regis In the Court of Wards IT was found by force of a Mandamus at Kendal in the County of VVestmerland the 21 of December 6 Jacobi Regis That George Earl of Cumberland long before his death was seised in tayl to him and to the Heirs males of his body of the Castles and Mannors of Browham Appleby c. the Remainder to Sir Ingram Clifford with divers Remainders over in tayl the Remainder to the right Heirs of Henry Earl of Cumberland Father of the said George and that the said George Earl so seised by Fine and Recovery conveyed them to the use of himself and Margaret his Wife for their lives for the Ioynture of the said Margaret and afterwards to the Heirs males of the body of George Earl of Cumberland and for want of such issue to the use of Francis now Earl of Cumberland and to the Heirs males of his body begotten and for want of such issue to the use of the right Heirs of the said George and afterwards by another Indenture conveyed the Fee-simple to Francis Earl By force of which and of the Statute of uses they were seised accordingly and afterwards 30 Octob. anno 3 Jacobi the said George Earl of Cumberland dyed without Heir male of his body lawfully begotten and further found that Margaret Countess of Cumberland that now is was alive and took the profits of the premisses from the death of the said George Earl of Cumberland until the taking of that inquisition and further found the other points of the Writ And first it was objected that here was no dying seised found by Office and therefore the Office shall be insufficient But as to that it was answerod and resolved That by this Office the King was not entitled by the common Law for then a dying seised or at first a dying the day of his death was necessary But this Office is to be maintained upon the Statute of 32 and 34 H. 8. by force of which no dying seised is requisite but rather the contrary scil If the Land be as this case is conveyed to the Wife c. And so it was resolved in Vincents case anno 23 Eliz. where all the Land holden in Capite was conveyed to the younger Son and yet the eldest Son was in Ward notwithstanding that nothing descended The second Objection was It doth not appear that the Estate of the Wife continued in her until the death of the Earl for the Husband and Wife had aliened the same to another and then no primer seisin shall be as it is agreed in Binghams case As to that it was answered and resolved That the Office was sufficient prima facie for the King because it is a thing collateral and no point of the Writ and if any such alienation be which shall not be intended then the same shall come in of the other part of the Alienee by a Monstrans de droit and the case at Bar is a stronger case because it is found that the said Countess took the profits of the premisses from the death of George the Earl until the finding of the Office XX. Trinity Term 7 Jacobi In the Court of Wards Wills Case HEnry Wills being seised of the fourth part of the Mannor of Wryland in the County of Devon holden of Queen Elizabeth in Socage-tenure in capite of the said fourth part enfeoffed Zachary Irish and others and their Heirs to the use of the said Henry for the term of his life and afterwards to the use of Thomas Wills his second son in tayl and afterwards to the use of Richard Wills his youngest son in tayl and for default of such issue to the use of the right Heirs of the said Henry and afterwards the said Henry so seised as abovesaid dyed thereof seised William Wills being his Son and Heir of full age Thomas the second son entered as into his Remainder All this matter is found by Office and the question was If the King ought to have primer seisin in this case and that Livery or Ouster le main shall be sued in this case by the Statutes of 32 and 34 H. 8. And it was resolved by the two chief Iustices and the chief Baron that not if in this case by the common Law no Livery or Ouster le main shall be sued and that was agreed by them all by the experience and course of the
his Deed indented dated the 22 of December in the first year of King James made between him of the one part and the said John Sammes and George Sammes Son and Heir apparent of the said John of the other part did bargain sell grant enfeoff release and confirm unto the said John Sammes the said Mead called Grany Mead to have and to hold the said Mead unto the said John Sammes and George Sammes and their Heirs and Assigns to the onely use and behoof of the said John Sammes and George Sammes their Heirs and Assigns for ever and by the same Indenture Sir Thomas did covenant with John and George to make further assurance to John and George and their Heirs to the use of them and their Heirs and Livery and Seisin was made and delivered according to the true intent of the said Indentures of the within mentioned premisses to the uses within mentioned John Sammes the Father dyeth George Sammes his Son and Heir being within age the Question was Whether George Sammes should be in Ward to the King or no And in this case three points were resolved 1. For as much as George was not named in the premisses he cannot take by the Habendum and the Livery made according to the intent of the Indenture doth not give any thing to George because the Indenture as to him is voyd but although the Feoffment be good onely to John and his Heirs yet the use limited to the use of John and George and their Heirs is good 2. If the Estate had been conveyed to John and his Heirs by the Release or Confirmation as it well may be to a Tenant by Copy of Court Roll the use limited to them is good for upon a Release which creates an Estate a use may be limited or a Rent reserved without question but upon a Release or Confirmation which enures by way of Mitter le droit an use cannot be limited or a Rent reserved But the third was of greater doubt If in this case the Father and Son were Ioynt-tenants or Tenants in common For it was objected when the Father is onely enfeoffed to the onely use of him and his Son and their Heirs in the Per that in this case they shall be Tenants in common By the Feoffment the Father is in by the common Law in the Per and then the limitation of the use to him and his Son and to their Heirs cannot devest the Estate which was vested in him by the common Law out of him and vest the Estate in him in the Post by force of the Statute according to the limitation of the use and therefore as to one moyety the Father shall be in by force of the Feoffment in the Per and the Son as to the other moyety shall be in by force of the Statute according to the limitation of the use in the Post and by consequence they shall be Tenants in common But it was answered and resolved That they were Ioynt-tenants and that the Son in the Case at Bar should have the said Grange by the Survivor for if at the common Law A. had been enfeoffed to the use of him and B. and their Heirs although that he was onely seised of the Land the use was joyntly to A. and B. For a use shall not be suspended or extinct by a sole seisin or joynt seisin of the Land and therefore if A. and B. be enfeoffed to the use of A. and his Heirs and A. dyeth the entire use shall descend to his Heir as it appeareth in 13 H. 7. 6. in Stoners Case and by the Statute of 27 H. 8. cap. 10. of Vses it appeareth That when several persons are seised to the use of any of them that the Estate shall be executed according to the use And as to that which was said That the Estate of the Land which the Father hath in the Land as to the moyetyof the use which he himself hath shall not be devested out of him To that it was answered and resolved That that shall well be for if a man maketh a Feoffment in Fee to one to tho use of him and the Heirs of his body in this case for the benefit of the issue the Statute according to the limitation of the uses devests the Estate vested in him by the common Law and executes the same in himself by force of the Statute and yet the same is out of the words of the Statute of 27 H. 8. which are Where any person c. stand or be scised c. to the use of any other person and here he is seised to the use of himself and the other clause is Where divers and many persons c. be joyntly seised c. to the use of any of them c. and in this case A. is sole seised But the Statute of 27 H. 8. hath been always beneficially expounded to satisfie the intention of the parties which is the direction of the uses according to the Rule of the Law So if a man seised of Lands in Fee-simple by Deed covenant with another that he and his Heirs will stand seised of the same Land to the use of himself and the Heirs of his body or unto the use of himself for life the remainder over in Fee in that case by the operation of the Statute the Estate which he hath at the common Law is devested and a new Estate vested in himself according to the limitation of the use And it is to be known that an use of Land which is but a pernency of the profits is no new thing but part of that which the owner of the Land had and therefore if Tenant in Borrough-English or a man seised of the part of his Mother maketh a Feoffment to another without consideration the younger Son in the one case and the Heir on the part of the Mother on the other shall have the use as they should have the Land it self if no Feoffment had been made as it is holden in 5 E. 4. 7. See 4 and 5 Phil. and Mar. Dyer 163. So if a man maketh a Feoffment unto the use of another in tayl and afterwards to the use of his right Heirs the Feoffor hath the Reversion of the Land in him for if the Donee dyeth without isse the Law giveth the use which was part of the Land to him and so it was resolved Trinity 31 Eliz. between Fenwick and Milford in the Kings-Bench So in 28 H. 8. Dyer 11. the Lord Rosses Case A man seised of one Acre by Priority and of another Acre by Posteriority and makes a Feoffment in Fee of both to his use and it was adjudged that although both pass at one instant yet the Law shall make a Priority of the uses as if it were of the Land it self which proves that the use is not any new thing for then there should be no Priority in the Case See 13 H. 7. b. by Butler So in the Case at Bar The use limited to
certain Lands in Hetherset and Windham in Norfolk and doth not say in two parts in three parts to be divided and yet it was good as well in the Declaration as in the Writ for without question the Writ is good de duabus partibus generally and so is the Register See 4 E. 3. 162. 2 E. 3. 31. 2 Assis 1. 10 Assis 12. 10 E. 3. 511. 11 Ass 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appeareth that by the intendment and construction of the Law when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part not divided As if two parts are demanded there remains a third part and when three parts are divided three remains a fourth part c. But when any demand is of other parts in other form there he ought to shew the same specialty as if one demandeth three parts of five parts or four parts of six c. And according to this difference it was so resolved in Jourdens Case in the Kings-Bench and accordingly Iudgment was given in this Term in the Case at Bar. XXVI Mich. 7 Jacobi Regis In the Common-Pleas Muttons Case AN Action upon the Case was brought against Mutton for calling of the Plaintiff Sorcerer and Inchantor who pleaded Not-guilty and it was found against him to the damages of 6 d. And it was holden by the whole Court in the Common-Pleas that no Action lieth for the said words for Sortilegium est rei futuri per sortes exploratio Et Sortilegus sive Sortilegista est qui per sortes futura praenunciat Inchauntry est verbis aut rebus adjunctis aliquid praeter naturam moliri whereof the Poet saith Carminibus Circes socios mutavit Ulyssis See 45 E. 3. 17. One was taken in Southwark with the Head and Visage of a Dead man and with a Book of Sorcery in his Mail and he was brought into the Kings-Bench before Knevet Iustice but no Indictment was framed against him for which the Clarks made him swear that he should never after commit any Sorcery and he was sent to prison and the Head and the Book were burned at Tuthill at the charges of the Prisoner And the ancient Law was as it appeareth by Britton that those who were attainted of Sorcery were burned but the Law is not such at this day but he who is convicted of such imposture and deceit shall be fined and imprisoned And it was said that it was adjudged That if one calleth another Witch that an Action will not lie for it is too general Et dicitur Latine Venefica But if one saith She is a Witch and hath bewitched such a one to death an Action upon the Case lieth if in truth he be dead Conjuration is derived of these words Con and juro Et propria dicitur quando multi in alicujus pernitiem jurant And in the Statute of 5 Eliz. cap. 16. it is taken for Invocation of any evil and wicked Spirits i. est conjurare verbis conceptis aliquos malos iniquos spiritus the same is made Felony But Witchcraft Inchantment Charm or Sorcery is not felony if not by them any person be killed or dyeth So that Conjuration est verbis conceptis compellere malos iniquos spiritus aliquod facere vel dicere c. But a Witch who works any thing by any evil spirit doth not make any Conjuration or Invocation by any powerful names of the Devil but the wicked spirit comes to her familiarly and therefore is called a Familiar But if a man be called a Conjurer or a Witch he shall not have any Action upon the Case unless that he saith That he is a Conjurer of the Devil or of any evil or wicked spirit or that one is a Witch and that she hath bewitched any one to death as is before said And note that the first Statute which was made against Conjuration Witchcraft Sorcery and Inchantment was the Act of 33 H. 8. cap. 8. and by it they were Felony in certain cases special but that Act was repealed by the Statute of 1 E. 6. cap. 12. XXVII Mich. Term 7 Jacobi Regis In the Court of Wards Sir Allen Percies Case SIr John Fitz and Bridget his Wife being Tenants for life of a Tenement called Ramshams the remainder to Sir John Fitz in tail the remainder to Bridget in tail the Reversion to Sir John and his Heirs Sir John and Bridget his Wife by Indenture demised the said Tenement to William Sprey for divers years yet to come except all Trees of Timber Oaks and Ashes and liberty to carry them away rendering Rent and afterwards Sir John dyed having issue Mary his daughter now the Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for seven years The Question was Whether Sir Allen having the immediate inheritance in the right of his Wife expoctant upon the Estate for the life of Bridget and also having the possession by the said Demise might cut down the Timber Trees Oaks and Ashes And it was objected that he might well do it for it was resolved in Saunders Case in the fifth part of my Reports fo 12. That if Lessee for years or for life assigns over his term or Estate unto another excepting the Mines or the Trees or the Clay c. that the exception is voyd because that he cannot except that which he cannot lawfully take and which doth not belong unto him by the Law But it was answered and resolved by the two chief Iustices and the chief Baron That in the Case at Bar the Exception was good without question because that he who hath the Inheritance joyns in the Lease with the Lessee for life And it was further resolved That if Tenant for life Leaseth for years excepting the Timber Trees the same is lawfully and wisely done for otherwise if the Lessee or Assignee cutteth down the Trees the Tenant for life should be punished in Waste and should not have any remedy against the Lessee for years and also if he demiseth the Land without exception he who hath the immediate Estate of Inheritance by the assent of the Lessee may cut down all the Timber Trees which when the term ended all should be wasted and then the Tenant for life should not have the Boots which the Law giveth him nor the pawnage and other profits of the said Trees which he lawfully might take But when Tenant for life upon his Lease excepteth the Trees if they be cut down by the Lessor the Lessee or Assignee shall have an Action of Trespass Quare vi armis and shall recover damages according to his loss And this case is not like to the said case of Saunders which was affirmed to be good Law for there the Lessee assigned over his whole interest and therefore could not except the Mines
Tenements were holden of the King in capite for this cause the suing of the Writ shall conclude the Heir onely which sueth the Livery and after his death the Iurors in a new Writ of Diem clausit extremum are at large as before is said And if that Iury finde falsly in a Tenure of the King also the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King c. in Socage the Heir may traverse the last Office for by that he is grieved onely and he shall not be driven to traverse the first Office and when the Father sueth Livery and dyeth the conclusion is executed and past as before is said And note that there is a special Livery but that proceeds of the Grace of the King and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda c. or to the Heir within age as it appeareth in 21 E. 3. 40. And that is general and shall not comprehend any Tenure as the general Livery doth and therefore it is not any estoppel without question And at the Common Law a special Livery might have been granted before any Office found but now by the Statute of 33 H 8. cap. 22. it is provided That no person or persons having Lands or Tenements above the yearly value of 20 l. shall have or sue any Livery before inquisition or Office found before the Escheator or other Commission But by an express clause in the same Act Livery may be made of the Lands and Tenements comprized or not comprized in such Office so that if Office be found of any parcel it is sufficient And if the Land in the Office doth exceed 20 l. then the Heir may sue a general Livery after Office thereof found as is aforesaid but if the Land doth not exceed 5 l. by the year then a general Livery may be sued without Office by Warrant of the Master of the Wards c. See 23 Eliz. Dyer 177. That the Queen ex debito Justitiae is not bound at this day after the said Act of 33 H 8 to grant a special Livery but it is at her election to grant a special Livery or to drive the Heir to a general Livery It was also resolved in this Case That the Office of 35 H. 8. was not traversable for his own Traverse shall prove that the King had cause to have Wardship by reason of Ward And when the King cometh to the possession by a false Office or other means upon a pretence of right where in truth he hath no right if it appeareth that the King hath any other right or interest to have the Land there none shall traverse the Office or Title of the King because that the Iudgment in the Traverse is Ideo consideratum est quod manus Domini Regis a possessione amoveantur c. which ought not to be when it appeareth to the Court that the King hath right or interest to have the Land and to hold the same accordingly See 4 H. 4. fo 33. in the Earl of Kents Case c. XXIX Mich. 7 Jacobi Regis NOte The Priviledg Order or Custom of Parliament either Parliament of the Vpper House or of the House of Commons belongs to the determination or decision onely of the Court of Parliament and this appeareth by two notable Presidents The one at the Parliament holden in the 27 year of King Henry the sixth There was a Controversie moved in the Vpper House between the Earls of Arundel and of Devonshire for their seats places and preheminences of the same to be had in the Kings presence as well in the High Court of Parliament as in his Councels and elsewhere The King by the advice of the Lords spiritual and temporal committed the same to certain Lords of Parliament who for that they had not leisure to examine the same it pleased the King by the advice of the Lords at his Parliament in anno 27 of his Reign That the Iudges of the Land should hear see and examine the Title c. and to report what they conceive herein The Iudges made report as followeth That this matter viz. of Honor and precedency between the two Earls Lords of Parliament was a matter of Parliament and belonged to the Kings Highness and the Lords spiritual and temporal in Parliament by them to be decided and determined yet being there so commanded they shewed what they found upon examination and their Opinions thereupon Another Parliament in 31 H. 6. which Parliament begun the sixth of March and after it had continued sometime it was prorogued until the fourteenth of February and afterwards in Michaelmas Term anno 31 H. 6. Thomas Thorp the Speaker of the Commons House at the Suit of the Duke of Buckingham was condemned in the Exchequer in 1000 l. damages for a Trespass done to him The 14 of February the Commons moved in the Vpper House That their Speaker might be set at liberty to exercise his place The Lords refer this Case to the Iudges and Fortescue and Prisoit the two chief Iustices in the name of all the Iudges after sad consideration and mature deliberation had amongst them answered and said That they ought not to answer to this question for it hath not been used aforetime That the Iustices should in any wise determine the Priviledg of this High Court of Parliament for it is so high and mighty in its nature that it may make Laws and that that is Law it may make no Law and the determination and knowledg of that Priviledg belongeth to the Lords of the Parliament and not to the Iustices But as for proceedings in the lower Courts in such cases they delivered their Opinions And in 12 E. 4. 2. in Sir John Pastons case it is holden that every Court shall determine and decide the Priviledges and Customs of the same Court c. XXX Hillary Term 7 Jacobi Regis In the Star-Chamber Heyward and Sir Iohn Whitbrokes Case IN the Case between Heyward and Sir John Whitbroke in the Star-Chamber the Defendant was convicted of divers Misdemeanors and Fine and Imprisonment imposed upon him and damages to the Plaintiff and it was moved that a special Proces might be made out of that Court to levy the said damages upon the Goods and Lands of the Defendant and it was referred to the two chief Iustices whether any such Proces might be made who this Term moved the Case to the chief Baron and to the other Iudges and Barons and it was unanimously resolved by them That no such Proces could or ought to be made neither for the damages nor for the costs given to the Plaintiff for the Court hath not any power or Iurisdiction to do it but onely to keep the Defendant in prison until he pay them For for the Fine due to the King the Court of Star-Chamber cannot make forth any Proces for the levying of the