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
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
County of Hereford in his Denâ—esne as of Free and found the other Points of the Writ and it was holden by the two Chief Justices and the Chief Baron 1. That Mâ—ssâ—agium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain Land or any thing that is holden 2. It was holden That it was void for the whole because no Town is mentioned in the Office where the Mâ—ssuage or Tenement c. lyeth and it was holden that no melius inquirendum shall issue forth because the whole Office is incertain and void Trin. 7 Jac. Regis In the Court of Wards The Attorney of the Court of Wards moved the two Chief Justices and the Chief Baron in this Case A man seized of Lands in Fee-simple covenants for the advancement of his Son and his Name Blood and Posterity that he will stand seized of them to the use of himself for life and after to the use of his eldest Son and to such Woman as he shall marry and the Heir-males of the body of the Son and afterwards the Father dyeth and after the Son takes a Wife and dyeth if the Wife shall take an Estate for Life And it was Resolved by the said two Chief Justices and Chief Baron That the Wife should take well enough being within the consideration which was for the advancement of his Posterity and without a Wife the Son cannot have Posterity Secondly 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 viz. 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 Justice and the whole Court in Sheffields Case in Q. Elizabeths time Trin. 7 Jac. Regis In the Court of Wards Spary's Case John Spary seized in Fee in the Right of his Wife of Lands holden by Knight-service had Issue by her and 22 Dec. 9 Eliz. alienated to Edward Lord Stafford The Wife dyed the Issue of full age the Alienee holds the Lands And 10 years after the Fathers death and 12 years after the Mothers Office is found 7 Jac. finding all the special Matter after the Mothers death The Question was Whether the mean Profits are to be answer'd to the King And it was Resolved by the two Chief Justices and Chief Baron that the King should have the mean Profits because the Alienee was in by Title and untill Entry the Heir has no Remedy for the mean Profits but that the King might seize and make Livery because the Entry of the Heir is lawful by the Stat. 32 H. 8. Trin. 7 Jac. Regis In the Court of Wards It was found by force of a Mandamus at Kendal in Westmerland 21 Dec. 6 Jac. that George Earl of Cumberland long before his death was seized in Tail to him and to the Heirs-male of his body of the Castles and Mannors of Browham Applâ—by c. the remainder to Sir Ingram Clifford with divers Remainders in Tail the remainder to the right Heirs of Henry Earl of Cumberland Father of the said George and that the said George Earl so seized by Fine and Recovery conveyed them to the use of himself and Margaret his Wife for their Lives for the Joynture of Margaret and after to the Heir-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 the Heir-males of his body and for want of such Issue to the use of the right Heirs of the said George And after by another Indenture conveyed the Fee-simple to Francis Earl By force of which and of the Statute of Uses they were seized accordingly and afterwards the 30 of Octob. 3 Jac. George Earl of Cumberland dies without Heirs male of his body c. And found further 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 till the taking the Inquisition and further found the other Points of the Writ 1. And first it was objected Here was no dying seized found by Office and therefore the Office shall be insufficient But to that it was Resolved That by this Office the King was not intitled by the Common-Law for then a dying seized was necessary But this Office is to be maintained upon the Stat. 32 and 34 H. 8. by force of which no dying seized is necessary and so it was Resolved in Vincents Case Anno 23 Eliz. 2. The second Objection was It doth not appear that the Wives Estate continued in her till the Earles death for the Husband and Wife had aliened the same to another and then no primer seizin shall be as is agreed in Binghams Case And to that it was 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 such Alienation be 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 the Councess took the Profits from the death of George the Earl till the finding the Office Trin. 7 Jac. Regis In the Court of Wards Wills Case Henry Wills seized of the 4th Part of the Mannor of Wryland in the County of Dâ—von holden of Q. Eliz. iâ— Socage Tenure in capite of the said 4â—h part enfeoffed Zathary Irish and others and their Heirs to the use of the said Henry for his Life and after his Decâ—ase to Thomas Wills his second Son in Tail and after to the use of Richard Wills his youngest Son in Tail and after the said Henry so seized as aforesaid dyed All this Matter is found by Office And the Question was If the King ought to have primer seizin in this Case that Livery and Ouster le mayne should be sued by the Statutes of the 32 and 34 H. 8. And it was Resolved by the two Chief Justices 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 couâ—se of the course See 21 Eliz. Dyer 362. and 4 Eliz. Dyer 213. And two Presidents were shâ—wed which were Decreed in the same Court by the Advice of the Justices Assistants to the Court. One in Trin. 16 Eliz. Thomas Stavely enfeoffed William Strelley and Thomas Law of the Mannor of Ryndly in Nottingh â—shire on condition that they re-enfeoffe the Feoffor and his Wife for their Lives the remainder to Thomas Stavely Sâ—n and Heir apparent of the Feoffer in Fee Which Mannor was holden of Q. Elizabeth in Socage Tenure in capite And it was Resolved That no Livery or Ouster le maine shall be sued in such Case because of the saving of the Stat. 32 H. 8.
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
2. Parl. accord 1 R. 3. against Benevolence Vide Claus 4 Ed. 3. n. 22. bis Case of Libells between Edwards and Wooton In Cam. Stellat The Case was That Doctor Wooton writ to Edmunds an infamous malicious scandalous and obscene Letter with his Name subscribed And this he Sealed and directed to his Loving Friend Mr. Edward Speed this and after the said Doctor dispersed to others a great number of Copies of the said Letter And it was Resolved by the Lord Chancellor Egerton the two chief Justices et per totam curiam That this was a subtle and a dangerous kind of Libell For though the writing of a private Letter without other Publicatior the Party to whom it is directed cannot have an Action Sur le Case but where it is published to others ' to the Plaintiffs Scandal Action lyeth The Doctor thought this could not in any manner have been punish't but 't was Resolved That the infamous Letter which in Law is a Libell shall be punished in the Star-Chamber being an Offence to the King and a motive to breach of the Peace And in the Case at Bar the dispersing of Copies of it aggravates the Offence for which also the Party may have an Action Sur le Case Note By the Civil Law a Person disabling himself to bear Office or making a Libell against himself shall be punished And though the Doctor subscribed his Name to the said Letter yet it importing matter Scandalous is in the Law a Libell The Law of the Lydians is That who slanders another shall be let Blood in the Tongue who hears it and ascents to it in the Ear c. Mich. 5 Jac. Regis Wooton and Edwins Case In Replevin the Defendant avowed and the Plaintiff demurred and the Case was thus William Hawes was seized in Fee of a Messuage and 55 Acres of Land five Acres of Meadow and six Acres of Pasture in Formanton in Com. Hereford and 27. Junii 28 H. 8. by Indenture demised the Tenement aforesaid to N. Traheron for 79 years Reddendo inde annuatim praefat Gulielm Hawes et assign suis 26 s. 8 d. at the Feasts of the Annunciation and St. Michael by equal portions And after the Lessor dyed and the Reversion descended to William his Son under whom the said John Edwin Claimed And the sole Point was If the Rent reserved in this Case shall go to the Heir or be determined by the death of the Lessor If the Lessor had reserved the Rent to him without more this shall determine by the death of the Lessor And the addition of the word Assignes shall not enlarge the reservation for the Assignes cannot have the Rent longer than the Lessor himself should have it Vide 18 Ed. 3. tit Ass 86. 10 Ed. 4. 18. 27 H. 8. 19. per Audlâ—y et vide Hâ—ll 33 Eliz. Rot. 1341. In a Replevin enter Richmond and Butcher Butcher avowed for Rent as Heir to his Father upon a Demise made by his Father of certain Lands for 21 years by these words Reddendo proinde durant termin 21 annos praefat Patri executor et assignat suis 10 l. legalis c. ad festa c. And it was adjudged That by this Reservation the Heir should not have the Rent because the Reservation was to the Father and his Executors c. not to his Heirs Mich. 5 Jac. Regis Case concerning Buggary The Letter of the Statute 25 H. 8. cap. 6. If any Person shall commit the detestable sin of Buggary with Mankind or Beast c. it is Felony which Act being Repealed 1 Mar. is revived and made perpetual 5 Eliz. cap. 17. and he lose his Clergy It appears by antient Authorities of the Law That this was Felony but they vary in the punishment For Britton who writ 5 Ed. 1. cap. 17. saith That Sorcerers Sodomers and Hereticks shall be burned F. N. B. 269. agrees with it But Fleta lib. 1. cap. 35. Christiani Apostati c. debent cumburi this agrees with Britton but Pecorantes et Sodomitae terra vivisâ—ffodiantur But in the Mirror of Justice vouched in Plow Com. in Fogosses Case the Crime is more high for there it is called Crimen laesae majestatis a horrible Sin against the King either Celestial or Terrestial in three manners 1. By Heresy 2. By Buggary 3. By Sodomy Note Sodomy is with mankind and is Felony and to make that Offence Opertet rem penetrate et semen naturae emittere et effundere for the Indictment is Contra ordinationem Creatoris et naturae ordinem rem habuit veneream dictumque puerum carnaliter cognovit and so it was held in the Case of Stafford Paederastes â—mator puerorum Vide Rot. Parl. 50 Ed. 3. 58. So in a Rape there must be penetration and emission of Seed Vide Stamf. fol. 44. which Statute makes the Accessary Guilty of Felony West 1. cap. 34. If a Man ravish a Woman 11 H. 4. 18. If one Ayd another in a Rape or be present he is principle in the Buggary Vide Levit. 18. 22. et cap. 10. 13. 1 Cor. 6. Case of Premunire In Doctor Cosines Book intituled An Answer c. and publisht 1584. And a Pamphlet lately publisht by Doctor Ridley they would obtrude upon the World That in regard by the Act 10 Eliz. cap. 1. all Spiritual and Ecclesiastical Power within the Realm is annexed to the Crown and the Law thereof is the Kings Ecclesiastical Law That therefore no Premunire lyes against any Spiritual Judge for any cause whatsoever And the Reasons some of their Profession give to confirm it are 1. That when the Statute of Premunire was made the Pope usurped Ecclesiastical Jurisdiction though de jure it belonged to the King But now since the King as well de facto as de jure is Supream Head of all The cause being changed the Law is changed also 2. â—T conclusion of the Writ of Premunire is in Domini Regis contemptum et prejudicium et dictae Coronae et dignitatum suarum Laesionem et exhaeredationem manifestam et contra forman statuti c. which proves the Jurisdictions united to the Crown and what is united to and derived from the Crown cannot be said contra Coronam et dignitatem Regis 3. The High Commission Court is the Kings Court and therefore though it may be said The Consistory Courts are Curiae Episcoporum yet that Court by force of the High Commission is the Kings and so their Proceedingâ— shall not be lyable to the Premunire 4. This new Court is erected by Act of Parliament c. And because the Sâ—atute of R. 2. speaks de curia Romana seu alibi c. This alibi cannot extend to a Court erected by Act of Parliament 10 Eliz. But to these Objections it was answered and resolved by divers Justices in this Term That without Question theâ— Statutes of 27 Ed. 3. 16 R. 2. c. de Premunire are yet in force And all proceedings before any
all his Right Estate c. The Plaintiff surjoyneth and saith that the said sum of 5 l. 6 s. 8 d. c. was not rationabilis finis as the said Thomas Bradley above hath alleadged c. Upon which the Defendant doth demur in Law c. And in this Case these Points were Resolved by Coke Chief Justice Walmesly Warberton Daniel and Foster Justices 1. If the Fine had been reasonable yet the Lords ought to have set a certain time and place when the same should be paid because it stands â—â—on the point of Forfeiture As if a man assures Lands to one and his Heirs upon condition to pay to the Bargainee and his Heirs 10 l. at such a place or that he and his heirs shall re-enter there because no time is limited the Bargainor ought to give notice to the Bargainee c. when he will tender the money and he cannot tender it when he pleaseth and with this agrees 19 Eliz. Dyer 244. So in the Case at the Bar the Copyholder is not bound to carry his Fine alwayes with him c. And though that the Rejoynder is that the Plaintift refused to pay the Fine so he might well do when the Request is not lawful or reasonable And he that is to pay a great Fine as 100 l. or more it is not reasonable that he carry it always with him And the Copyholder was not bound to do it because the Fine was incertain and arbitrable as was Resolved in Hulbarts Case in the 4th Part of my Reports among the Copy-hold Cases 2. It was Resolved That though the Fine be uncertain and arbitrable yet it ought to be secundum arbitrium boni viri and it ought to be reasonable because Excessus in re qualibet jure reprobatur communi for the Common-Law forbids any excessive Distress as appears 41 Ed. 3. 26. And this doth appear to be the Common-Law for the Statute of Articuli super Chartas extends onely for a grievous Distress taken for the Kings Debt See F. N. B. 147. a. and 27 Ass 51. 28 Ass 50. 11 H. 4. 2. and 8 H. 4. 16. c. And so if an excessive Amerciament be imposed in any Couâ—t-Baron or other Court not of Record the Party shall have Moderata mis ericordia And Magna Charta is but an Affirmance of the Common-Law in this Point See F. N. B. 75. And the Common-Law gives an Assize of Sovient Distress and multiplication of Distress found which is Excess And with this agrees 27 Ass 50 51. F. N. B. 178 b. And if Tenant in Dower hath Tenants at Will that are rich and makes them poor by excessive Tallages and Fines this is wast F. N. B. 61. b. 16 H. 3. Wast 135. and 16 H. 7. Vide also the Register Judicial fol. 25. B. Waste lyeth in Exulando Henricum Hermanum c. Villeynes Quorum quilibet tenet unum messuagium unam Virgat terrae in Villenagio in Villa praed c. By all which it appears the Common-Law forbids excessive oppressing of Villains c. So in the Case at Bar though the Fine is uncertain yet it ought to be reasonable and so it appears by the Custome alleadged by the Defendant See Hubbard's Case before in the 4th Part of my Reports And when reasonableness concerning a Fine is in question the same shall be determined by the Court in which the Action depend 21 H. 6. 30. 22 Ed. 4 27. and 50 29 H. 8. 32. c. 3. It was Resolved That the Fine in the Case at the Bar was unreasonable being for the admittance of a Copy-holder in Fee-simple upon a Surrender made for this is not like a voluntary Grant c. for there Arbitrio Domini res estimari debet But when the Lord is compellable to admit him to whose use the Surrender is And when Câ—stuy que use is admitted he shall be in by him who made the Surrender and the Lord is but an Instrument to present the same 4. It was Resolved That the Surjoinder is no more than what the Law saith And for the Causes aforesaid Judgment was given for the Plaintiff And Coke Chief Justice said in this Case That if the Court of Admiralty amerce the Defendant excessively at discretion as seems by 19 H. 6. 7. the same shall not bind the Party and be it excessive or not it shall be determined in the Court where the Action shall be brought And a Writ of Account against a Bayliff or Guardian Quod reddat â—i rationabilem compâ—tum c. for the Law requires Reason and no excuse or extremity in any thing Mich. 6 Jac. Regis in the Common-Pleas Porter and Rochester's Case This Term Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tythes growing in B. in the said County of Essex by Porter in the Court of the Arches of the B. of Canterbury in London And the Case was The Archbishop of Canterbury â—ath a peculiar Jurisdiction of 14 Parishes called a Deanry exempt from the Authority of the Bishop of London whereof the Parish of St. Mary de Arcubus is the chief And the Court is called the Arches because it is holden there And a great Question was moved If in the said Court of Arches holden in London he might cite any dwelling in Essex for substraction of Tythes growing in Essex or if he be prohibited by the Statute 23 H. 8. cap. 9. which after Debate at Bar by Councel and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common-Pleas A Prohibition was granted to the Court of Arches And in this Case divers Points were Resolved by the Court. 1. That â—â—l Acts of Parliament made by the King Lords and Commons in Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civillians Cannonist although the Acts concern Ecclesiastical Jurisdiction And in 10 H. 7. the Bishop of London caused onâ— to be imprisoned because the Plaintiff said he ought not to pay his Tythes to his Curate And the imprisoned Party brought his Action of false Imprisonment against those that arrested him by the Bishops Command and there the Matter is well argued what words are within the Statute and what words are not So upon the same Statute was Resolved in 5 Ed. 4. in Keysar's Case in the Kings Bench which see in my Book of Presidents And so the Statutes of Articuli Cleri de Prohibitione regiâ De Circuâ— spâ—cte agitis of 2 Ed. 6. cap. 13. c. have alwayes been expounded by the Judges of the Common-Law as was adjudged in Wood's Case Pasch 29 Eliz. So 21 H. 8. cap. 13. See 7 Eliz. Dyâ—r 233. 15 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dyâ—r 327. 18 Eliz. Dyer 352 347. 22 Eliz. Dyer 377. 2. Resolved by Coke Chief Justice Warbâ—â—ton Daniel and
such a Custom in non Decimando for all Lay-people within the said Weild were lawful or not was the Question And to have a Prohibition it was said That though one particular man shall not prescribe in non Decimando yet such a general Custom within a great Countrey might well be as in 43 Ed. 3. 32. And the 45 Ed. 3. Custome 15. where an Abbot purchased Tenements after the Statute c. and saith That being Lord of the Town c. there was a Custom in the said Town that when Tenant cesseth for 2 years the Lord may enter c. And that his Tenant cessed for 2 years and he entred And the Rule of the Court is Because it was an usage only in that Town he was put to answer by which appears that a Custom was not good in a particular Town that perhaps might be good in a Countrey c. See 40 Ass 21. 27. 39 Ed. 3. 2. See also 7 H 6. 26. b. 16 Ed. 2. Prescription 53. Dyer 363. 22 H. 6. 14. 21 Ed. 4. 15. and 45 Ass 8. Doct. Stud. lib. 2. cap. 55 A particular Country may prescribe to pay no Tythes for Corn c. but with this Caution that the Minister hath sufficient portion besides to maintain him to celebrate Divine Service And fol. 172. it is holden That where Tythes have not been paid to Under-â—oods under 20 years growth that no Tythes shall be paid for the same And fol. 174. that such a Custome of a whole Country that no Tythes of a Lordship shall be paid is good But the Court would advise Whether such a Custom of a Town or Country be good But in anâ—ient times the Parishioners have given or procured to the Parson a Wood or other Lands c. To hold to him and his Successors in satisfaction of all Tythes of Wood in the same Parish the Parson so seized of the same that without question is a good discharge of his Tythes and if he sue for the same a Prohibition lyes I will cite an antient Judgment many years past Mic. 25 H. 3. Wilts Rot. 5. before the King at Westminster Samson Folyet brought an Attaint upon a Prohibition against Thomas Parson of Swindon because he sued him in the Spiritual Court for a Layâ—ee of the said Samson in Draycot contrary to the Kings Prohibition c. and the Parson was condemned in 20 Marks c. which agrees with the Rule and Reason of the Law continued unto this day For Presidents in Ed. 2. Ed. 1. H. 3. and King John and more antient are not to be now followed unless they agree with the Law and practice at this day Statutes having changed some and Desuetudo antiquated others There are two Points adjudged by the said Record 1. That satisfaction may be given in discharge of payment of Tythes And if the Successor of the Parson enjoy the thing given in satisfaction of the Tythes and yet sueth for Tythes in kind he shall have a Prohibition because that he chargeth his Layfee with Tythes which is discharged of them By which it doth appear that Tythes cannot be discharged and altogether taken away and extinâ— And herewith agrees the Register which is the most ancient Law-Book fol. 38. By which also it appears That Tythes may be discharged and that the matter of discharge ought to be determined by the Common-Law and not in the Spiritual Court Also by the Act of Circumspecte agatis made 13 Ed. 1. It is said S. Rector petat versus Paroâ—hianos oblationes decimas debitaâ— consuetas c. Which proves there are Tythes in kind and other Tythes due by Custom as a Modus Decimandi c. And yet it is Resolved 19 Ed. 3. Jurisdiction 28. 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 Tythes due by Custome which â—is a Modus Decimandi By which it appears also that Tythes by Custom may be altered to another thing See 8 Ed. 4. 14. F. N. B. 41. g. vide 3 Ed. 3. 17. 16 Ed. 3. Annuity 24. 40 Ed. 3. 3. b. and F. N. B. 152. And if the Lord of a Mannor hath alwayes holden his Mannor discharged of Tythes and the Parson had before time of memory divers Lands in the same Parish of the Gift of the Lord of which the Parson is seized at this in Fee in respect of which the Parson nor any of his Predâ—cessors ever had received any Tythes of the said Mannor If the Parson now sue for Tythes of the said Mannor the Owner of the Mannor may shew that special Matter c. And the Proof that the Lord of the Mannor gave the Lands that Tythes should never be paid at this day is good Evidence to prove the surmise of the Prohibition 19 Ed. 3. Tit. Jurisdiction 28. It is adjudged That Title of Prescription shall be 〈◊〉 in the Kings Court And therefore a Medus Lecimandi which accrues by Custam and Prescription likewise It appears 6 H. 4. cap. 6. that the Pope by his Bulls discharged divers from payment of Tythes against which the Act was made 31 H. 8. cap. 13. Possessions of Religious Persons given to the King were discharged of payment of Tythes in certain Cases 32 H. 8. cap. 7. provides all Tythes to be set as formerly except such as are discharged So 2 Ed. 6. c. 13. by which appears one may be discharged of Tythes five wayes 1. By the Law of the Realm viz. the Common-Law as Tythes shall not be paid of Coales Quarries Bricks Tyles c. F. N. B. 53. and Reg. 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 31 H. 8. 13. 45 Ed. 3. c. 3. By Priviledge as those of St. Johns of Jerusalem in England the Cistertians Temptors c. as appears 10 H. 7. 277 Dyer 4. By Prescription as by Modus Decimandi annuall recompence in satisfaction as aforesaid 5. By reall Composition as appears by the Writ cited out of the Register By all which appears That a man may be discharged of payment of Tythes as aforesaid So as now it is apparent by the Law of England both Antient and Modern that a Lay-man ought to prescribe in Modo Decimandi not in non Decimando and that in effeâ—â— agrees with Thomas Aquinas in his secunda secundae Quaest 86. ar ultimo See Doct. Stud. Lib. 2. cap. 55. fol. 164. That the Tenth Part is not due by the Law of God nor by the Law of Nature which he calls the Law of Reason And he cites John Gerson a Doctor of Divinity in a Treatise which he calleth Regulae morales viz. Solutio Decimarum Sacerdotibus est de Jure Divino quatenus inde sustenteâ—tur sed quoad tam hanc vei illam assignare aut in alios reditus commutarâ—
receive any diminution of such Reverence and Respect in our Places which our Predecessors had We shall not be able to do You such acceptable Service as they did The state of the Question is not in statu deliberativo but in statu judiciali it is not disputed de bono but de vero non de lege fienda sed de lege lata Not to devise or frame new Laws but to inform You what Your Law of England is And it was never seen before that when the Question is of the Law that your Judges of the Law have been made Disputants with their Inferiours that daily plead before them in the several Courts at Westminster And though we are not afraid to dispute with Mr. Bennet and Mr. Bacon yet this Example being primae impressionis and your Mâ—jesty detesting Novelties We leave it to your Princely Consideration whether you will permit our answering in hoc statu judiciali But in obedâ—ence to your Majesties Command We will inform your Majesty touching the said Question which We and our Predecessors before Us have oftentimes adjudged upon Judicial Proceedings in your Courts of Justice at Westminster which Judgments cannot be reversed or examined for any Errour in Law if not by a Writ of Errour in a more High and Supream Court And that this is the antient Law of England appears by the Stat. of 4 H. 4. c. 22. And We being commanded to proceed all that was said by Us the Judges was to this effect That the Tryal de modo Decimandi ought to be by the Common-Law by a Jury of Twelve Men it appears in three Manners 1. By the Common-Law 2. By Acts of Parliament 3. By infinite Judgments and Judicial Proceedings long times past without interruption But first it is to see what is a Modus Decimandi Now Modus Decimandi is when Lands Tenements or Hereditaments have been given to the Parson and his Successors or an Annual certain Sum or other Profit alwayes time out of mind in full Satisfaction and Discharge of all Tythes in kind in such a place and such manner of Tything is now confessed by the other Party to be a good Bar of Tythes in Kind 1. That Modus Decimandi shall be tryed by the Common-Law and therefore put that which is the most common Case That the Lord of the Mannor of Dale prescribes to give to the Parson 40 s. yearly in full Satisfaction and Discharge of all Tythes growing within the said Mannor of Dale at the Feast of Easter The Parson sues the Lord of the Mannor of Dale for his Tythes of his Mannor in kind and he in Bar prescribes ut supra The Question is If the Lord of the Mannor of Dale may upon that have a Prohibition for if the Prohibition lye then the Ecclesiastical Court ought not to try it 1. First The Law of England is divided into Common-Law Statute and Customs and therefore the Customs of England are to be tryed by the Tryal which the Law of England appoints 2. Prescriptions by the Law of the Holy Church and by the Common-Law differ in the times of Limitation and therefore Prescriptions and Customs of England shall be tryed by the Common-Law See 20 H. 6. f. 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Arch-Deacon of Surrey and declared That he and his Successours were seized by the Hands of the Defendant by Title of Prescription and the Defendant demanded Judgment is the Court would hold Jurisdiction between Spiritual Persons c. Stone Justice Be assured That upon Title of Prescription we will there hold Jurisdiction And upon that Wilby Chief Justice gave the Rule Answer Upon which it follows That if a Modus Decimandi which is an Annual sum for Tythes by Prersciption comes in Debate between Spiritual Persons that the same shall be tryed here 32 E. 2. Jurisdiction 26. There was a Vicar who had onely Tythes and Oblations and an Abbot claimed an Annuity or Pension of him by Prescription and it was adjudged That the same Prescription though between Spiritual Persons shall be tryed here Vide 22 H. 6. 46. 47. 3. See the Record 25 H. 3. cited in the Case of Modus Decimandi before and see Register fol. 38. 4. See the Stat. of Circumspecte agatis Decimae debitae seu consuctae which proves that Tythes in kind and a Modus by Custom c. 5. 8 E. 4. 14. and F. N. B. 41. g. A Prohibition lyes for Lands given in discharge of Tythes 28 E. 3. 97. a. There was a Suit for Tythes and a Prohibition lyes 6. 7 E. 6. 79. If Tythes are sold for Money by the Sale the Things Spiritual are made Temporal And so in the Case de modo Decimandi 42 E. 3. 12. agrees 7. 22 E. 3. 2. Because any Appropriation is mixed with the Temporalty otherwise of that which is meer Temporal So it is of reall Composiâ—ion where the Patron ought to joyn Vid. 11 H. 4. 85. 2. Secondly By Acts of Parliament 1. The said Act of Circumspecte agatis that gives power to the Ecclesiastical Judge to sue for Tythes first due in Kind or by Custom viz. Modus Decimandi So as by that Act though the Yearly Sum soundeth in the Temporalty which was paid by Custom in discharge of Tythes yet because the same comes in the place of Tythes and by Constitution the Tythes are changed into Money and the Parson hath not any remedy for the same which is the Modus Decimandi at the Common-Law For that cause the Act is clear that the same was a Doubt at the Common-Law And the Stat. of Articuli Cleri cap. 1. If that corporal punishment be changed into poenam pecuniariam for that Pain Suit lyes in the Spiritual Court For which see Mich. 8 H. 3. Rot. 6. in Thesaur And by the 27 H. 8. cap. 20. It is Enacted That all Subjects of the Realm according to the Ecclesiastical Law and after the laudable Usages and Custom of the Parish c. shall yield and pay his Tythes c. and for substraction thereof may by due process c. compell him to yield the Duties and with that in effect agrees 32 H. 8. c. 7. By the 2 Ed. 3. c. 13. it is Enacted That all the Kings Subjects shall henceforth truly and justly without Fraud c. divide c. and pay all their Predial Tythes in their proper kind as they rise c. And always when an Act of Parl. commands or prohibits any Court be it Spiritual or Temporal to do any thing Spiritual or Temporal if the Stat. be not obtained a Prohibition lyes as upon the Stat. de artic super chart cap. 4. Quod communio Placita non tenentur in Scaccario A Prohibition lyes to the Court of Exchequer if the Barons hold a common Plea there as appears in the Register 187. b. So upon the Stat. West 2. Quod inquisitioâ—â—es quae magnae sunt examinationis non
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
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
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
Law The Case was often argued at Bar and now this Term it was argued at the Bench by the Justices and therein these Points were resolved 1. That the first part of the Custom was absurd and repugnant but it extends not to the Case for the last part of the Custom which concerns the cutting down of the Trees concerns the Point in question and so the first part of the Custom is not material And when it was objected that the pleading that the Messuage of the Plaintiff was in decay was too general as appears by the Book 10 Ed. 4. 3. To that it was answered by Cook Chief â—ustice That the said Book proved the pleading in the Case at Bar was certain enough and therewith agrees 7 H. 6. 38. 34 H. 6. 17. 2. It was Resolved That in this Case without question there needs not to alleadge more certainty for the Copyholder doth not here take it according to the Custom but the Lord of the Mannor cuts it down and preventeth the Copyholder of his benefit and therefore he needeth not to shew any decay at all but onely for increasing of Damages for the Lord does the wrong when he cuts down the Tree which should serve for Reparations 3. It was Resolved That of Common-Right as a thing incident to the Grant the Copyholder may take House-bote Hedge-bote and Plough-bote upon his Copy-hold Quia concesso uno conceduntur omnia sine quibus id consistere non potest And with this agrees 9 H. 4. Wast 59. But the same may be restrained by Custome 4. It was Resolved That the Lord cannot take all the Timber-Trees but he ought to have sufficient for Reparation of the Customary Houses and for Plough-bote c. for otherwise great Depopulation will follow And it is to be understood that Bote being on old Saxon Word hath two significations First compensatio criminis as Frithbote signifies to be discharged for giving amends for breach â—f the Peace Manhote to be discharged of amends for the death of a man And secondly for Reparation as Bridgebote Burghbote Castlebote Parkbote c. And it is to be known that Bote and Estovers are all one And Estover is derived of the French Word Estover i. e. fovere i. e. to keep warm cherish c. And there are four kinds of Estovers viz. First Arandi Secondly Ardendi Thirdly Construendi And fourthly Claudendi viz. Ploughbote Firebote Housebote and Hedgebote 5. It was Resolved That the Copyholder shall have a general Action of Trespass against his Lord Quare clausum fregit arborem suam succidit For Custome hath fixed it to his Estate against his Lord. And the Copy-holder in this Case hath as great an Interest in the Timber Trees as he hath in his Messuage which he holds by Copy And if the Lord break or destroy 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 for Reparation of his Messuage or else it cannot stand See Trin. 40 Eliz. Rot. 37. in B. R. between Stebbing and Grosenor See Taylor 's Case in the Fourth Part of my Reports and see 5 H. 4. 2. 2 H. 4. 12. 2 E. 4. 15. 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. 11 H. 4. 23. 21 H. 7. 14. b. acc 35 H. 6. 24. 30 H. 6. Tresp 10. c. 21 H. 7. 15. 11 H. 4. 23. See Fitz. Trespass ultimo in the Abridgement And afterwards the same Term Judgment was given on the principal Case for the Plaintiff Pasch 8 Jacobi In Communi Ranco The Parishioners of St. Alphage in Canterbury by Custome ought to choose the Parish-Clerk whom they chose accordingly The Parson by colour 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 Custome drew the Clark before Dr. Newman Officiall of the Arch-Bishop of Canterbury to deprive him upon the Point of right Election and for other Causes And upon that it was moved at the Bar to have a Prohibition And upon hearing of Dr. 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 him viz. the Custome is also meerly Temporal So as the Official cannot deprive him but upon occasion the Parishioners may displace him And this Office is like that of a Church-Warden who though they be chosen for two years yet for cause they may displace them as is held in 26 H. 8. 5. And though the Execution of the Office concerneth Divine Service yet the Office it self is meer Temporal See 3 E. 3. Annuity 30. 18 E. 3. 27. 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 lyes by the 25 H. 8. but an Assize as in 4 Eliz. Dyer 209. And therewith agrees the Book 8 Ass Sirases Case But if a Dean of a Cathedral Church be deprived before the Commissioners of the King he may appeal to the Delegates within the said Act 25 H. 8. For a Deanery is a Spiritual Promotion and not Temporal And before that Act in such Case the Appeal was to Rome immediately Mich. 5 Jacobi Regis In Banco Regis Prichard and Hawkin's Case John Prichard brought an Action upon the Case against Robert Hawkins for Slanderous Words publish'd the last Day of August 3. Jacob. Viz. That Prichard which serves Mistriss Shelley did murder John Adam's Child Quandam Isabellam Adams modo defunct filia cujusdam Johannis Adams de c. innuendo Upon which a Writ of Errour was brought in the Exchequer-Chamber upon a Judgment given for Prichard in the Kings-Bench and the Judgment was reversed in Easter Term 7 Jac. because it doth not appear that Isabel was dead at the time of speaking the words for tunc defunct ought to have bin in stead of modo defunct Pasch 8 Jac. In Banco Regis Dison and Bestney's Case Humphry Dyson said of Nicholas Bestney a Councellor at Law of Grays-Inne Thou a Barrester Thou art no Barrester Thou art a Barretor Thou wert put from the Bar and darest not shew thy self there Thou study the Law thou hast as much Wit as a Daw. Upon Not Guilty pleaded the Jury found for the Plaintiff and gave 23 l. Damages upon which Judgment was given and upon Writ of Errour in the Exchequer-Chamber the Judgment was affirmed Pasch 8 Jac. Regis In Banco Regis Smith and Hill's Case Noah Smith brought an Action of Assault and Battery against Walter Hill in the Kings-Bench which began Pasch 7 Jac. Rot. 175. Upon Not Guilty pleaded a Verdict and Judgment for the Plaintiff and 107 l. given for Damages and Costs In a Writ of Errour in the Exchequer Chamber the Errour was