had Issue John his eldest Son and others viz. Christopher Richard c. and being seized of Land in Fee oâ— 100 Marks per annum value his eldest Son being dead and his Grandchild John withâ—n age he gave direction for a Lease to be made of a Faâ—m called Roushal to Christopher during the minority of his Grand-child rendring the antient Rent with power of Revocation and of Lands in Yatesbury to Richard in the same manner and the same time Chrâ—stopher and Richard by the Covin of one Woodruff a Serivener 25 Eliz. drew two Leases to Christopher and Richard for 51 years rendring 4 d. per annum and without any power of Revocation John Shulter the Grandfather being blind with age and Woodruff telling him they were according to his direction And thereupon John Shulter thâ— Grandfather sealed and delivered them And it was resolved by the Lord Ellesmere Chancellor and two Chief Justies That the said Indentures could not bind the said John Shulter because he was blind and the effect was declared to him other than in truth it was Iâ— fully agreed with Mansers Case in the second part of my Reports fol. 4. Mich. 9 Jacobi Regis Sir Anthony Ashley's Case The Case was this Sir James Creyton had bought a pretended Right of and in the Mannor of â—yddy and Millisent and divers oâ—her Lands of which Sir Anthony had long possession Upon which divers Motions were made concerning Fines acknowledged to be staid c. in the Common-Bench and Sir James not prevailing in it entred into a wicked Conspiracy with several other Defendants in the Cause to accuse the said Sir Anthony of some Capital Crimes whereby he should forfeit all his Lands Goods and Chattels which they should share amongst them and in the end Henry Smith formerly a Servant to Sir Anthony was suborned to accuse the said Sir Anthony of the Muâ—ther of William Rice late Husband of Mary Rice one of the Defendants which William was dead 18 years before and Smith was to have 500 l. for his pains to have a place procured him in the Kings Guard in Ordinary a Proteâ—tion also from the King against his Creditors and a General Pardon Of all which Smith would have assurance before he would make any Accusation of the said Sir Anthony Whereupon Articles in Writing were drawn ingrossed and sealed between Sir James Creyton of the one part and John Cantrel Servant to Hunnings by Smith's Consent and to his use on the other part By which Sir Jaâ—es Covenanted that the said Cantrel and his Heirs after the Conviction and Attainder of Sir Anthony shall have a sixth part of his Mannors c. In consideration whereof Cantrel Covenanted that he should procure Witnesses to Convict the Plaintiff of Murther or other Capital Crimes c. Which Articles were sealed 16 of Feb. 7 Jac. And for the performance of the said Articles Sir James gave Bond of 8000 l. to Cantrel Within two dayes after Smith counterfeits himself sick and then pretending to disburthen his Conscience reveales the said Murther and accused himself for poysoning the said William Rice by the said Sir Anthonies Command so that he himself was Principal Upon this Sir James procures Mary Rice the Widow of the said William Rice to prefer a Petition to the King importing the Accusation aforesaid Which Petition the King referred to the Chief Justice of the Kings-Bench who after full Examination certified the King that he found a false Conspiracy to indict Sir Anthony without any just ground and certified also the effect of the Articles Upon which the King by Advice of the Privy-Councel thought the matter fit to be sentenced in the Star-Chamber Which in the same Term upon ordinary proceeding was heard by six dayes And it was objected by the Defendants Councel That the Bill upon the said Conspiracy did not lye and that it would be dangerous to maintain it for it will deter men to prosecute against great Offenders whereby they will pass unpunished And by the Law Conspiracy lyes where a man is indicted and legitimo modo acquietus but here he was never indicted c. But to this it was Answered and Resolved by the Lord Chancellor the two Chief Justices and all the Court That in this Case the Bill was maintainable though the Party accused was not indicted and acquitted before as it was Resolved in this Court Hill 8. Jac. in Poulter's Case Besides be Sir Anthony guilty or no the Defendants are punishable for promising Bribes and Rewards to Smith to accuse the Plaintiff and the Articles to share Sir Aâ—thonies Estate after Attainder And there is a great Indignity offered to the King in assuming to Covenant that the King shall protect or pardon or that any man's Estate may be shared before Attainder And it appeared by many Witnesses that William Rice dyed not of any poysoning but of a horrible Disease got by his dissolute life which with Reverence cannot be spoken And in this Case it was Resolved That if Felony be done and one hath suspition upon probable matter that another is guilty of it he may arrest the party so suspected to bring him to Justice But in this Case three things are to be observed 1. That a Felony be done 2. That he that doth arrest hath suspition upon probable cause 3. That he himself who hath the suspition arrest the party Resolved also That if Felony be done and common fame and noise is that one hath committed it this is good cause for him that knowes of it to arrest the party and with this agrees the Book 2 H. 5. 15 16. 15 H. 7. 5. 20 H. 7. 12. 21 H. 7. 28. 7 Ed. 4. 20. 8 Ed. 4. 27. 11 Ed. 4. 4. 6. 17 Ed. 4. 5. 6. 20 Ed. 4 6. B. 7 H. 4. 25. 27 H. 8. 23. 26 H. 8 9. 7 Eliz. Dy. 226. Hill 9 Jac. Regis In this Term the Attorney and Sollicitor consulted with me if at this day upon Conviction of an Heretick before the Ordinary the Writ de Haeretico combunendo lyeth and it seems to be clear that it doth not for the Reasons and Authorities that I have reported Trin. 9 Jacob before But after they consulting with Fleming Chief Justice Tanfield Chief Baron and Williams and Crook And they upon the Report of Dr. Cosins mentioned in my said Report and some Prâ—sidents in Queen Elizabeth's time they certified the King that the said Writ lyeth but that the most sure way was to convict the Heretick before the High Commissioners Pasch 10 Jac. Regis The Lord Vaux his Case In this Term the Lord Vaux was indicted of a Premunire in the Kings-Bench upon the New Statute for refusing the Oath of Allegeance upon his Arraignment he prayed he might be tryed per Pares But iâ— was Resolved That he shall not for that Magna Charta cap. 29. Nec super cum ibimus nec super eum mittemus nisi per legale judicium parium suorum is onely to be
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
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—
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
c. But if a man be convict in the Star-Chamber for Forgery upon the Stat. 5 Eliz. In that Case for the double Costs and Damages an English Writ shall be made directed to the Sheriff c. reciting the Conviction and Statute for levying the said Costs and Damages c. and to bring the money into Star-Chamber and the Writ shall be sealed with the Great Seal and the Teste of the King The like Resolution was in Langdale's Case in that Court Hill 7 Jac. Regis In the Common-Pleas Morse and Webb's Case In a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of Novemb. 3 Jac. regis nunc in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conuzance because the place where is an Acre of Land which is the Freehold of the said William Sherrington and for Damage feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land is parcel of Downfield and that he himself at the time and before the taking c. was and is yet seized of two Yard-Land with the Appurtenances in Luddington and that he and all those whose Estate he hath in the said 2 Yard-Land time out of mind c. have used to have Common of Pasture per totam contentam of the said Place called the Downfield whereof c. for 4 Beasts called Rother-Beasts and two Beâ—sts called Horse-Beasts and for 60 Sheep at certain times in the Year c. And that he put in the said two Oxen to use his Common c. And the Defendant maintained his Avowry and traversed the Prescription upon which the Parties were at Issue and the Jury found a special Verdict That before the taking one Richard Morse Father of the said John Morse now Plaintiff whose Heir he is was seized of the said two Yard-Land and had Common of Pasture c. as is before alleadged and so seized the said Richard Morse 20 Eliz. demised to William Thomas and John Fisher divers parcels of the said two Yard-Land to which c. viz. the four Butts of Arable with the Common and Inter-Common to the same belonging for 400 years By force whereof the said William Thomas and John Fisher entred c. so seized dyed whereby the Possession and Reversion of the said two Yard-Land descended to John Morse now Plaintiff And if upon the whole Matter John Morse now hath and at the time of the taking c. had Common of Pasture c. for c. as to the said two Acres of Land with the Appurtenances in Law or not the Jury pray the Advice of the Court. Note This Plea began Trin. 5 Jac. Rot. 1405. and upon Argument at the Bar and Bench 1. It was Resolved by the whole Court That it ought to be found against the Defendant who had traversed the Prescription For though all the two Yard-Lands had been demised for years yet the Prescription made by the Plaintiff is true But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in Evidence 2. Resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shâ—ll have Common rateable and in such manner that the Land in which c. shall not be surcharged 3. Resolved That Common appendant to Land is as much as to say for Cattel leuant and couchant upon the Land in which c. 4. There is no difference when the Prescription is for Cattel leuant and couchant and for a certain numbâ—r of Cattel leuant and couchant But when the Prescription is for Common appurtenant to Land there a certain number of the Cattel ought to be expressed which are intended by the Law to be leuant and couchant Hill 7 Jac. Regis In the Common-Pleas Hughes and Crowther's Case In a Replevin between Robert Hughes Plaintiff and Richard Crowther Defendant which began Trin. 6. Jac. Rot 2220. The Case was Charles Fox was seized of 6 Acres of Meadow in Bedston in the County of Salop in Fâ—â— and 10 Octob. 9 Eliz. leased the same to Charles Hibbens and Arthur Hibbens for 60 years if the said Charles and Arthur should so long live and afterwards Charles dyed and if the Lease determine by his death was the Question And it was adjudged That by his death the Lease was determined For the life of a man is meer collaterall unto the Estate for years otherwise if a Lease be made to for the Lives of J. S. and J. N. See Brudnel's Case in the 5th Part of my Reports which Case was affirmed for good Law by the whole Court Pasch 8 Jac. Regis In Communi Banco Heydon and Smith's Case Richard Heydon brought an Action of Trespass against Michael Smith and others of breaking his Close called the Moor in Ugley in the County of Essex the 25 day of June 5 Jac. Et quandam arborem suam ad valentiam 40 s. nuper crescen succiderunt The Defendants said that the Close and at the time of the Trespass was the Freehold of Siâ— John Leventhrop Knight c. and that the said Oak was a Timber-Tree of 30 years growth and more and justifies the cutting down of the Tree by his Command The Plaintiff replyes and saith That the said Close and a House and 28 Acres of Land in ugley are Copy-hold and parcel of the Mannor of Ugley c. Of which Mannor Edward Leventhrop Esq Father of Sir John Leventhrop was seized in Fee and granted the said House Lands and Close to the said Richard Heydon and his Heirs by the Rod at the Will of the Lord according to the Custome of the said Mannor and that within the Mannor there is such a Custome Quod quilibet teneres Customar ejusdem Manerii sibi haeredibus suis ad voluntat Dom. c. a toto tempore supradicto usus fuit ad ejus libitum amputare ramos â—mnimodum arborum called Pollingers or Husbords super terris tenement suis Customar crescen pro ligno combustibili c. and also to cut down and take all manner of Trees called Pollingers and Husbords and all other Timber Trees c. for reparation of their Houses and also for Plough-boot and Cart-boot and that all the Trees c. hitherto growing upon c. were not sufficient for the necessary uses aforesaid And that the said Richard Heydon from the time of the said Grant had preserved c. all Treas c. growiâ—g upon the said Lands to him granted and that after the said Edward Leventhrops death the Mannor descended to the said Sir John and that at the time of the Trespass the aforesaid Messuage of the said Richard Heydon was in decay c. upon which the Defendant demurred in
lawfully endowed and paid his first Fruits and Tenths Resolved by all the Court that it shall be presumed that the Vicaridge was lawfully endowed And that it is a dangerous President to examine Originalls of Impropriations and Endowments of Vicaridges for that they may perish And so it was decreed for the Plaintiff Hill 4. Jac. Regis Bedle and Beard Anno 31. Ed. 1. The King being seized of the Mannor of Kâ—mbolton to which the Advowson of the said Church was appendant by Letters Patents granted the said Mannor wish the Appâ—â—tenances to Humphry de Bohun Earl of Hereford in tayl generall Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson then full of an Incumbent to the Prior of Stonely and his Successors And at next avoydance they held In proprios usus Upon this Appropriation Concurrentibus his quae in jure requiruntur the Prior and his Successors held the same till the dissolution of the Monastery 27. H. 8. The said Mannor descended to Edward Duke of Buckingham as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was attaint of High Treason 14 H. 8. The King granted the said Mannor c. with all Advousons appendant c. to Richard Wingfield and his Heirs Males 16 H. 8. It was Enacted that the said Duke forfeit all Mannors c. Advousons c. which he had c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton as impropriate in Fee which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defendant got a Presentation of the Queen by Lapse pretending the said Church was not lawfully impropriate to the Prior. 1. For that Humphry who granted to the Prior had nothing in it nothing passing to his Ancestor by these words Manâ—rium cum pertinentiis 2. Or for that having no more but an Estate Tayl by his death his Grant was void But Resolved by the Lord Chancellor Ellesmere with the principal Judges and upon consideration of Presidents that the Plaintiff shall enjoy the Rectory for though by any thing which can now be shewn the Impropriation is defective yet it shall be now intended in regard of the antient and continual possession that there was a lawfull grant of the King to the said Humphry who granted in Fee so that he might lawfully grant it to the said Priory Omnia pâ—â—sumitur Solâ—mniter esse acta And all shall be presumed to be done which might make the antient Impropriation good And antient Grants and Acts shall not be drawn in question though they cannot be shewn for Tempus edâ—x rerum Letters Patents and Writings may consume be lost or imbezilled And therefore the Church was allowed to be rightfully impropriate and the rather in regard of the antient and long possession of the Owners of the said Rectory Mich. 4. Jac. Regis Case of Forfeiture by Treason Hill 43 Eliz. A Case was moved to all the Justices Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself and his Wife in Tayl. And after the said Statute the Husband was attaint of High Treason 31 H. 8. and dyed The Wife continued in possession and dyed their Issue enter and die and this descends to his Issue and all this found by Office The Question was if the Issue in Tayl or the King shall have the Land 1. And it was objected that the antient Estate Tayl cannot be forfeited because it was discontinued and such right of Action cannot be forfeited As was agreed in the Marquess of Winchesters Case 2. The Feoffor himself in this Case had not any right to the antient Estate Tayl it being extinguished by his Feoffment and therefore by his Attaint could not forfeit what he had not 3. The Issue in Tayl in remitted to that antient right which cannot be forfeited And the new Estate Tayl derived under the discontinuance which may be forfeited by the Statute 26 H. 8. cap. 13. is continued and by Act in Law viz. the discent and remitter avoided And the Kings Estate may be divested out of the King by remitter As if Tenant in Tail grant Land to the King c. and the King grant the Land to the Tenant in Tail for life the remainder to his Son and Heirs for life Tenant for life dies the Issue by and in Law is remitted and the Kings Estate is divested out of him This accords with Plow Com. 489. Nicols Case 1. Resolved that in this Case the Issue in Tail is barred for though right of Action cannot be given to the King by the 26 H. 8. yet when Tenant in Tail discontinues his Estate to the use of himself in Tail and after is attaint of Treason now by that Statute he doth not onely forfeit the new Estate in Tail but by this the right of the antient Estate is barred for ever And so note out of the said Statute a diversity between a naked right of Action not forfeitable and an Estate of Inheritance forfeiâ—able coupled with an antient right for which the Forfeiture of the possession is barred by the said Act And iâ— is not like the Case in Plow Com. of Remitter for this is no barre of an antient right Pasch 4 Jac. Regis Case at a Committee aoncerning Bishops At this Parliament held Pasch 4 Jac. Regis It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber that such Bishops as were made after the first day of the Session were not lawful Bishops 1. Admitting them Bishops yet the manner and form of their Seals Stiles Process and Proceeding in their Ecclesiastical Courts were not consonant to Law Because by the Statute 1 Ed. 6. cap. 2. it is provided That thenceforth Bishops should not be Elective but Donative by Letters-Patents of the King And for that at this day all Bishops were made by Election not Donation of the King therefore the saâ—d Bishops are not lawful 2. By the same Act it is provided That all Summons c. and Process in Ecclesiastical Courts shall be made in the King's Name and Stile and their Seals Engraven with the Kings Arms and Certificates made in the Kings Name It was therefore concluded Thâ—t the said Statute being still in force by Consequence all Bishops made after the Act 1 Jac. were not lawful Bishops And the Proceedings being in the Name of the Bishop makes them unlawful Quia non obserâ—ata forma infertur adâ—ullatio actus Upon Consideration had of these Objections by the Kings Commandment it was Resolved by Popham Chief Justice of England â—nd Coke Attorney of the King and after affirmed bâ— the Chief Baron and the other Justices Attendant to â—he Parliament that the said Act of the 1 Ed. 6. cap. 2. is not now in force being repealed annulled and annihlated by three several Acts of Parliament Any whereof being
Benevolent Hearts By this means he collected great Sâ—ms of Money but with some grudge 11 H. 7. ca. 20. An Act was made for levying that Benevolence 20 H. 7. A Commission to levy what was granted 11 H. 7. 15 H 8. A Commission under the Great Seal called A Commission of Anticipation 16 H. 8. For Warre with Fraâ—ce a Benevolence levyed with great Curses against the Councel for it was for a sixth part of the value in Money or Plate against the Subjects good-will 26 H. 8. Another Benevolence levyed by Commission against the Subjects Will But if the Subjects will of their free Will give the King any Moneys this is not prohibited by any Stature This is proved by the 11 H. 7. c. 18. Feb. Anno 40 Eliz. Resolved by all the Justices and Barons That a free Grant to the Queen without coertion is lawful and accordingly they granted the Queen Quod not a hene Quia c. Pasch 12 Jac. Regis The Case of Dungannon in Ireland being a New Corporation was thus The King Constituted the Town of Dungannon to be a Free Borough Et ulterius volumus c. quod Inhabitantâ—s Villae praedictae sint unum corpus corporatum per nomen Praepositio 12 Burgensium Communiâ—atis Dungannon c. Et quod ipsi praedicti Praepositi Burgenses successores sui habeant potestaten eligendi duos Burgenses c. ad Parl. c. And the Doubt was If this Grant of Election of Burgesses of Parliament were good because it was granted but to parcel of the body viz. the Provost and Burgesses and not to the Commonalty And the Chief Baron thought this being but a Nomination it was sufficient to make the Provost and Burgesses onely to have it but this was denyed by all Justices and Barons For the power to Elect Burgesses is an Inheritance which the Provost and Burgesses are not capable of and ought to be vested in the entire Corporation And so it was Resolved by all That such a Grant made by the King should be void for the Inhabitants have not Capacity to take an Inheritance as in 15 Ed. 4. to have Common And Littleton saith in his Chapter of Burgage That the Burroughs which send Burgesses to Parliament were the most antient and chief Cities c. So that it shall be intended that at first they were incorporate Also Plus valet saepenumero vulgaris consuetudo quam regalis concessio But it was Resolved by Hâ—bbard Tanfield Altham Wiâ—th Nicols and Haughton that Quod Volumus was a good word of Grant as Pigot was of Opinion 21. Edw. 4. and this shall be implyed a Grant to all the Corporation that the Provost and Burgesses shall Elect c. And regularly when the Grant is indefinite viz. First Concedimus an incertain thing ulterius volumus quod Praepositus Burgenses Successores sui eligerint This shall be within the first Concedimus to all the Body But the Chief Justice of England and Dodderidge thought the contrary Note All the New Corporations were of the same Form and in none of them is any Clause to Elect New Burgesses so that when the modern Burgesses dye the power to Elect Burgesses is gone Mich. 12 Jacobi Regis A Question was moved to the Chief Baron and Justices of Sergeants Inn in Chancery-Lane That if a Felon be convict either by Verdict or Confession if immediatly by his Conviction his Goods and Chattels be forfoited And it was said That if the Felon after Conviction pray his Clergy he then shall clearly forfeit his Goods and Chattels for Quodam modo this is a Flight because refusing the Common-Law he flyes to Priviledge of Holy Church But it was Resolved by the chief Baron and Justices That immediatly by his Conviction his Goods and Chattels are forfeited and the praying of his Clergy is not any Forfeiture and with this agrees Stamf. sol 192. a. and also 1 R. 3. And of the same Opinion was the Chief Justice and Justices of Sergeants Inne in Fleetstreet Vid. Trin. 41 Eliz. 332. Mich. 12 Jacobi Regis Anne Hungate's Case in Cam. Stell In this Term a great Case was heard and determined in the Star-Chamber between Sir Henry Day who dyed pendent the Bill and Anne his Wife and Nicholas Bedingfield Esque and Elizabeth his Wife Plaintiffs And Anne Hungate Widow Sir Robert Winde Henry Branthwait Esque Thomas Townesend Esq Thomas Blomfield Gent. and George Min Gent Defendants The Case was thus Henry Hoogan Esq being seized of the Mannor of Hamonds and of divers Lands of East-Bradenham c. in Norfolk in Fee by Deed enfeoffed them in the use of the said Anne who took Hungate to Husband and had Issue by him a Son and a Daughter and he dyed Anne obtained the Wardship of the Son and after when the Son was of the Age of 21 years wanting onely 6 Weeks by Dedimus potestatem directed to Sir Robert Winâ—e Henry Branthwayt then Feoâ—ary and Thomas Townesend they took Cognizance of a Fine of the said Son being of the Age aforesaid and sick And the Bill charged them all with Practice in procuâ—ing the said Son to acknowledge the said Fine they knowing him under Age and in Wardship as aforesaid but there was no practice used by any of the Defendants but the Son of his own good-will levyed it And by Indâ—nture the use was limited to his Mother the said Anne and her Heirs with power of Revocation by the Son upon tender of 10 s. And this was in consideration that the Mother had paid the Debts of his Father which were very great and had obtained the Wardship of him and to confirm her Joynture And that his Mother if she pleased might give it to his Brother by Hungate who was but of half-bloud And it appeared the Mother knew the Son to be within Age but the Commissionars were ignorant of it nor did they send for the Church-Book in which his Age did appear being in the same Parish And the Plaintiffs Councel prayed that the Defendants should be punished for their Misdemeanour And that the Women Plaintiffs who were Cosins c. Heirs to the said Son of the entire bloud should be dis-inherited by the said Fine To which it was Resolved by the two Chief Justices and chief Baron That there was not any Crime punishable by the Law in this Case for the Judges of the Law and of this Court may punish Offences c. but they cannot create Offences nor do as Hannibal did to make his Way over the Alps when he could find none for Judicandum enim legibus ubi non est lex ibi nec est transgressio And therefore if a Fine levyed by an Infant be not Reversed during his Minority 't is unavoidable in Law because the Infants Age is to be tryed Non testium testimonio non juratorum veredicto sed Judicis inspectione solummodo F. N. B. sol 21. And for this it was Resolved by the said
found by Office as appears by the Books 11 H. 4. 52. Ass 31. 30. Ass 28. 46 Ed. 3. bre 618. 9 H. 7. 24. c. 1 As to the first it was Resolved That the Wife should be endowed and that the Fine with Proclamations was not a Bar to her and yet it was Resolved That the Act 4 H. 7. c. 24. shall barre a Woman of her Dower by such a Fine if the Woman bring not her Writ of Dower within five years after the Husbands death as was adjudged Hill 4 H. 8. Rot. 344. in the Common-Pleas and 5 Eliz Dyer 224. For by the Act the Title of Feâ—e-Covert iâ— saved by taking Action in 5 years after she is uncovert c. But it was Râ—solved That the Wife was not to be aâ—dâ—d by that saving for in respect of her Husbands Attainder she had not any Right of Dower at his death nor could sue for the same after his death But it was Resolved That the Wife was to be aided by another former saving in the same Act viz. And saving to all other persons viz. who were not Parties to the Fine such Action Right c. as shall first grow or come c. to them after the Fine ingrossed and Proclamations made by force of any Gift in Tail or other Cause or Matter before the Fine levyed so that they take their Action and pursue their Title within 5 years after such Right come to them c. And in this Case the Action and Right of Dower accrewed to the Wife after the Reversal of the Attainder by reason of a Title of Record before the Fine by reason of the Seizin in Fee had and Marriage made before the Fine levyed according to the meaning of the said Act. And as to the Point of Relation it was Resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some not for relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same Parties to advance a Right but not to advance a Wrong which the Law hates or to defeat Collateral Acts which are lawful and chiefly if they concern Strangers for true it is as hath been said that as to the mean profits the same shall have relation by construction of Law till the time of the first Judgment given and that is to favour Justice and advance his Right that hath Wrong by the Erroneous Judgment But if a Stranger hath done a Trespass upon the Land in the mean time he who recovereth after the Reversal shall have an Action of Trespass against the Trespassors and if the Defendant pleads there is to such Record the Plaintiff shall shew the Special Matter and maintain his Action And for the better apprehending the Law on this Point it is to know That when any man recovers any Possession or Seizin of Land in any Action by Erroneous Judgment and afterwards the Judgment is reversed as is said before and thereupon the Plaintiff in the Writ of Errour shall have a Writ of Restitution and that Writ reciâ—es the first recovery and the Reversal of it in the Writ of Errour is That the Plaintiff in the Writ of Errour shall be restored to his Possession and Seizin Una cum exitibus thereof from the time of the Judgment c. Tibi praecipimus quod cadem A. ad plenariam seizinam tenementor praed c. restitui facias per Sacramentum proborum c. diligâ—nter inquiras ad quantum exitus proficua tenementor illor c. a tempore falsi Judicii c. usque ad Oct. Sanct. Mich. anno c. quo die Judicium illu c. revocat fuit c. et quâ—liter hoc praecept c. in Octâ—b c. By which it appears that the Plaintiff in the Writ of Errour shall have Restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Erâ—our cannot have Remedy against a Stranger and therefore the words of the said Writ command the Sheriff to inquire of the Issues and Profits generally c. And therefore the Plaintiff in the Writ of Errour after the Reversal shall have any Action of Trespass for a Trespass mean and therewith agreeth Brian Chief Justice 4 H 7. 12. a. See Butler and Baker's Case in the third Part of my Reports good matter concerning Relations So as it was Resolved in the Case at Bar though to some intent the Reversal hath relation yet to bar the Wife of her Dower by fiction of Law by the Fâ—ne with Proclamations and five years past after the Husbands death when in truth she had not cause of Action nor any Title so long as the Attainder stood in force should be to do a Wrong by a fiction in Law and to bar the Wife who was a meer stranger and could have no Relief till the Attainder was reversed As to the other Objection That the Demandant on the Petition ought to have an Office found for hâ—r It was Resolved That it needed not in this Case because the Title of Dower stood with the Queens Title and affirmed it Also in this Case the Queen was not intitled by any Office that the Wife should be driven to traverse it for then she ought to have had an Office But in case of Dower though that Office had been found for the Queen which doth not disaffirm the Title of Dower in such Case the Wife shall have her Petition without Office See Sâ—dlers Case in the Fourth Part of my Reports And the Case put on the other side was utterly denied by the Court for it was Resolved That if a man seized of Lands in Fâ—e take a Wife of eight years of Age and alien his Lands and after the Wife attains to the Age of nine years and afterwards the Husband dyeth that she shall be endowed because the Title of Dower being not consummate till the death of the Husband and there being Marriage Seizin in Fee age of 9 years and the Husbands death for that cause she shall be endowed it being sufficient that the Marriage Seizin and Age happen during the Coverture So if a man seized of Lands in Fee take a Wife and after she elopes from her Husband now she is barrable of her Dower if during the elopement the Husband alien and after the Wife is reconciled she is Dowable So if a man hath Issue by his Wife and the Issue dyeth and afterwards Land discends to the Wife or she purchase Lands in Fee and dyes without other Issue the Husband for the Issue which he had before the Discent or Purchase shall be Tenant by the Courtesie But if a man taketh an Alien to Wife and afterwards he aliens his Lands and after that she is made a Denizen she shall not be endowed for she was not by her Birth capable of Dower but by her Denization it began But
all the purview of the Statute which is penned so precisely concerning persons should be all in vain by that evasion of Transcribing it as well against the express Letter of the Act as the intention of it And the Act ought to be expounded to suppress Extortion which is a great affliction and impoverishing of the Subjects 4. As this Case is he annexes the Probate and Seal to the Transcript ingrossed which the Plaintiff brought him so as the Case at Bar was with question And afterwards the Jury found for the Plaintiff And of such Opinion was Walmesly Warberton Daniel and Foster Justices the next Term in all things But upon Exception in Arrest of Judgment for not pursuing of the Act in the Information Judgment is not yet given c. Hill 6 Jac. Regis In the Common-Pleas In this Term a Question was moved to the Court which was this If Tenant in Burgage should pay aid to the King to make his eldest Son Knight And the Point rests upon this If Tenure in Burgage be a Tenure in Socage for by the antient Common-Law every Tenant in Knights Service and in Socage was to give to his Lord a reasonable Ayd to make his eldest Son a Knight and to marry his eldest Daughter and that was uncertain at Common-Law and also incertain when the same should be paid And this appears by Glanvil lib. 9. cap. 8. fol. 70. who wrote in the time of Henry the second Nihil autem certum statutum de hujus modi auxilâ—is dandis vel exigendis c. And in the beginning of the Chapter it is called rationabile auxilium because then it was not certain but to be moderated by Reason in respect of Circumstances The like appears by the Preamble of the Statute West 1. 3 Ed. 1. cap. 35. The said Act put those incertainties to a certainty 1. That for a whole Knights Fee there be taken but 20 s. and of 20 l. Lands holden in Socage 20 s. and of more more and of less less whereby the Ayd it self became certain 2. That none might levy such Ayd to make his Son a Knight untill his Age of 15 years nor to marry his Daughter till her Age of 7 years And Fleta who wrote after that Act calls them rationabilia auxilia c. And by the Stat. 25 Ed. 1. where it is provided That Taxes shall be taken but by common consent of the Realm there is an Exception of the Antient Ayds which is to be intended of these Ayds But notwithstanding the said Act of West 1. it was doubted if the King were bound by it being not expresly named And therefore Ed. 3. in the 20 year of his Reign took â—n Ayd of 40 s. of every Knights Fee to make the Black Prince Knight and then nothing of Lands holden in Socage and to take away all question concerning the same it was confirmed by Parliament and after 25 Ed. 3 cap. 11. It is Enacted That reasonable Ayd to make the Kings eldest Son Knight and to marry his eldest Daughter shall be levyed after the form of the Stat. made thereof and not in other manner Now Littleton lib. 2. cap. 10. fol. 36. b. Burgage Tenure is where an antient Borough is whereof the King is Lord and those who have Tenements within the Borough hold of the King That every Tenant for his Tenement ought to pay to the King a certain Rent And such Tenure is but Tenure in Socage and all Socage Land is contributary to Ayd and therefore a Tenant in Burgage shall be contributary to Ayd It appeareth in the Register fol. 1 2. in a Writ of Right Lands held in Knights Service are said Quas clamat tenere perservitium unius Feâ—di militis And Socage Lands Quas clamat per liberum servitium unius cumini c. So F. N. B. 82. Rationabile auxilium de militibus et liberis tenentibus where Militibus distinguisheth Knights Service from Socage which is called libtris tenentibus But it appears by the Books of Avowry 26. and 10 H. 6. So Antient Demesne 11. It was Resolved by all the Justices in the Exchequor Chamber That no Tenure shall pay for a reasonable Ayd but Tenure by Knights Service and by Socage but not by Grand Sergeanty nor no other And 13 H. 4. 34. agrees to the Case o Grand Sâ—rgeanty And I conceive that Petit Sergeanty shall also pay Ayd for Littleton lib. 2. cap. 8. fol. 36. sayes That such a Tenure is but Socage in effect though Fitzh N. B. 83. a. avouch the contrary 13 H. 4. 34. And I conceive That he who holds a Rent of the King by Knights Service or in Socage shall pay Ayd according to the words in West 1. cap. 35. And though it was said that a Tenure in Socage in servitium Socae as Littleton saith and the same cannot be applyed to Houses To that it was answered That the Land upon which the Houses are buâ—l or if the House fall down may be made arable and plowed See Huntington Polydor Virgil and Hollinsheads Chron. fol. 35. 15 H. 4. Ayd was levyed by H. 1. 7. to marry Mawd his eldest Daughter to the Emperour viz. 3 l. of every Hide of Land c. See also The Grand Customary of Normandy cap. 35. there is a Chapter of Aydeâ— See also the Stat. made 19 H. 7. which beginneth thus Item Praefati Communes in Parliamento praed existent ex assensu c. concesserunt praefat Regi quand pecuâ—iae summam in loco duorum rationabilium auxilior suae Majestat de jure debit c. See Rot. 30 H. 3. Ex parte Reman Dom. Thâ—saur in scemino in auxilio nobis concess ad primogenitam filiam noâ—â—ram maritand And H. 3. had an Ayd granted by Parliament Ad Is abellam sororem suam Imperatori But that was of Benevolence Rot. 42 H. 3. ibid. 6. Monstrat R. Johanne le Francois Baro de Scaccario quod cum Dom. Rex non caperet nisi 20 s. de integro Feodo Mil. de auxilio c. Ibid. in Regno 2 Ed. 1 Rot. 3. de auxilio ad Militiam Which is meant of Knight of the Kings Son Note If one withâ—n Age be in Ward of the King he shall not be contributary to Ayd but his Tenants that hold of him shall as appears by that Record Ibid. 30 Ed. 1. Ibid. T. R. 34 E. 1. Ibid. Hill 4 H. 4. Rot. 19. de rationabili auxilio de Will. Dom. Roos The like M. Rot. 5 H. 4. Rot. 33. Lincoln Roâ— 34. Lincoln Rot. 35 Lincoln Tr. R. 5 H. 4. Rot. 2. Kanc. Rot. 3. Kanc. Rot. 5. Kanc. See ibid. R. 21 Ed. 3. Rot. Cantab. â—e auxilio adfilium Regis primogenitâ—m faciend per Episcopum EEliens See also ibid. 20 Ed. 3. Rot. 13 14. de auxiliendo ad primogenitum filium Râ—gis Militem faciend By all which before cited it appeareth that Tenure in Burgage is subject to the payment of
Service Tenant Richard Hulme dyed after whose death 31 H. 8. it was found that he dyed seized of the said Mesnalty and that the same descended to Edward his Son and Heir within Age and found the Tenure aforesaid c. And during nonagâ— Robert Male dyed seized of the said Tenancy peravail and that the same descended to Richard his Son and Meir as was found by Office 25 H. 2. within age and that the said Tenancy was holden of the King as of his said Dutchy by Knights Service whereas in truth the same was holden of Edward Hulme then in Ward of the King as of his Mesnalty for which the King seized the Ward of the Heir of the Tenant And afterwards Anno quarto Jacobi Rogis nunc after the death of Richard Male the lineal Heir of Robert Male by another Office it was found that Richard dyed seized of the Tenancy and held the same of the King as of his Dutchy c. his Heir within age Whereupon Richard Hulme Cozen and Heir of the said Richard Hulme preferred a Bill to be admitted to traverse the Office found 4 Jac. Regis And the Question was Whether the Office found 35 H. 8. be any Estoppel to the said Hulme or if that the said Hulme should be first driven to Traverse that And it was objected That he ought first to traverse the Office of 35 H. 8. as in the Case 26 E. 65. And that the first Office shall stand as long as the same remaines in force To which it was Answered and Resolved by the two Chief Justices and Chief Baron and Court of Wards That the finding of an Office is not any Estoppel for that is but an Inquest of Office and the party grieved shall have a Traverse to it But when an Office is found falsly that Land is holden of the King by Knights Service in capite or of the King himself in Socage if the Heir fueâ—h a general Livery it is holden 46 Ed. 3. 12. by Mowbray and Persey that he shall not after adde that the Land is not holden of the King But that is not any Estoppel to the Heir himself and shall not conclude his Heir for so saith Mowbray himself expresly 44 Ass pl. 35. See 1 H. 4. 6. b. So 33 H. 6. 7. And there is no Book that saith that the Estoppel shall endure longer than his life but that is to be intended of a general Livery but a special Livery shall not conclude one And if a Jury find falsly in a Tenure of the King the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King in Socage c. the Heir may traverse the last Office for by that he is grieved and he shall not be driven to traverse the first Office And when the Father sues Livery and dyes the Conclusion is executed and past as is aforesaid And note there is a special Livery but that proceeds of the King's Grace and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda or to the Heir within age as appears 21 E. 3. 40. And then is general and shall not comprehend any Tenure as the several Livery doth and therefore it is not any Estoppel without question See the 33 H. 8. cap. 22. 23 Eliz. Dyer 177. It was also Resolved in this Case that the Office of 35 H. 8. was not traversable for his own Traverse shall prove that the King had cause to have Wardship by reason of Ward And when the King comes to the Possession by a false Office or otherwise if it appears the King have any other Right to have the Land there none shall traverse the Office or Title of the King because the Judgment in the Traverse is Ideo consideratum est quod manus Domini Râ—gis amoveantur c. See 4 H. 4. fol. 33. in the Earl of Kents Case c. Mich. 7 Jacobi Regis Note The Priviledge Order or Custom of Parliament either of the Upper-House or House of Commons belongs to the Determination of the Court of Parliament and this appeareth by two notable Presidents 1. The one at the Parliament holden in the 27 H. 6. There was a Controversie moved in the Upper-House between the Earles of Aâ—undel and Devonshire for their Seats Places and Pre-eminences of the same to be had in the King's Presence as well in Parliament as in Councels and elsewhere The King by the Advice of Lords Spiritual and Temporal committed the same to certain Lords of Parliament who not having leisure to examine the same by the said Lords Advice referred it to the Judges of the Land to hear see and examine the Title c. and to report what they conceive herein The Judges reported as followeth That this matter viz. of Honour and Pre-eminency between the two Earles Lords of Parliament was a matter of Parliament and belonged to the King and his Lords in Parliament to be decided Yet being so commanded they shewed what they found upon Examination and their Opinions thereon Another Parliament 31 H. 6. 6th of March begun and after some continuance was prorogued to the 14 of February and afterwards in Michaelmas Term the same 31 H. 6. Thomas Thorpe Speaker of the Commons House was condemned in the Exchequer in 1000 l. Damages at the Duke of Buckingham's Suit for a Trespass done to him The 14th of Feb. the Commons mâ—ved in the Upper-House that their Speaker might be set at liberty to exercise his Place c. The Lords refer it to the Judges and Fortâ—scue and Prisoit the two Chief Justices in the Name of all the Judges answer'd That they ought not to consider this Question c. but it belongeth to the Lords of the Parliament and not to the Justices But as to their Proceedings in the Lower-Courts in such Cases they deliver'd their Opinions See 12 E. 4. 2. Hill 7 Jac. Regis In Cam. Stâ—ll Heyward and Sir John Whitbrook's Case In the Case between Hyward and Sir John Whitbrook in the Star-Chamber the Defendant was convicted of divers Misdemeanours and Fine and Imprisonment imposed on him and Damages to the Plaintiff And it was moved that a special Process might be made out of that Court to levy the said Damages upon the Lands and Goods of the said Defendant And it was referred to the two Chief Justices whether any such Process might be made who this Term moved the Case to the Chief Baron and the rest of the Judges and Barons and it was unanimously by them all Resolved That no such Process could or ought to be made neither for the Damages nor for the Costs given to the Plaintiff the Court having no such power but onely to keep the Defendant in Prison till he pay them For for a Fine due to the King they can make no Process to levy it but they estreat it into the Exchequer which hath power by Law to write forth Process