Tenements were holden of the King in capite for this cause the suing of the Writ shall conclude the Heir onely which sueth the Livery and after his death the Iurors in a new Writ of Diem clausit extremum are at large as before is said And if that Iury finde falsly in a Tenure of the King also the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King c. in Socage the Heir may traverse the last Office for by that he is grieved onely and he shall not be driven to traverse the first Office and when the Father sueth Livery and dyeth the conclusion is executed and past as before is said And note that there is a special Livery but that proceeds of the Grace of the King and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda c. or to the Heir within age as it appeareth in 21 E. 3. 40. And that is general and shall not comprehend any Tenure as the general Livery doth and therefore it is not any estoppel without question And at the Common Law a special Livery might have been granted before any Office found but now by the Statute of 33 H 8. cap. 22. it is provided That no person or persons having Lands or Tenements above the yearly value of 20 l. shall have or sue any Livery before inquisition or Office found before the Escheator or other Commission But by an express clause in the same Act Livery may be made of the Lands and Tenements comprized or not comprized in such Office so that if Office be found of any parcel it is sufficient And if the Land in the Office doth exceed 20 l. then the Heir may sue a general Livery after Office thereof found as is aforesaid but if the Land doth not exceed 5 l. by the year then a general Livery may be sued without Office by Warrant of the Master of the Wards c. See 23 Eliz. Dyer 177. That the Queen ex debito Justitiae is not bound at this day after the said Act of 33 H 8 to grant a special Livery but it is at her election to grant a special Livery or to drive the Heir to a general Livery It was also resolved in this Case That the Office of 35 H. 8. was not traversable for his own Traverse shall prove that the King had cause to have Wardship by reason of Ward And when the King cometh to the possession by a false Office or other means upon a pretence of right where in truth he hath no right if it appeareth that the King hath any other right or interest to have the Land there none shall traverse the Office or Title of the King because that the Iudgment in the Traverse is Ideo consideratum est quod manus Domini Regis a possessione amoveantur c. which ought not to be when it appeareth to the Court that the King hath right or interest to have the Land and to hold the same accordingly See 4 H. 4. fo 33. in the Earl of Kents Case c. XXIX Mich. 7 Jacobi Regis NOte The Priviledg Order or Custom of Parliament either Parliament of the Vpper House or of the House of Commons belongs to the determination or decision onely of the Court of Parliament and this appeareth by two notable Presidents The one at the Parliament holden in the 27 year of King Henry the sixth There was a Controversie moved in the Vpper House between the Earls of Arundel and of Devonshire for their seats places and preheminences of the same to be had in the Kings presence as well in the High Court of Parliament as in his Councels and elsewhere The King by the advice of the Lords spiritual and temporal committed the same to certain Lords of Parliament who for that they had not leisure to examine the same it pleased the King by the advice of the Lords at his Parliament in anno 27 of his Reign That the Iudges of the Land should hear see and examine the Title c. and to report what they conceive herein The Iudges made report as followeth That this matter viz. of Honor and precedency between the two Earls Lords of Parliament was a matter of Parliament and belonged to the Kings Highness and the Lords spiritual and temporal in Parliament by them to be decided and determined yet being there so commanded they shewed what they found upon examination and their Opinions thereupon Another Parliament in 31 H. 6. which Parliament begun the sixth of March and after it had continued sometime it was prorogued until the fourteenth of February and afterwards in Michaelmas Term anno 31 H. 6. Thomas Thorp the Speaker of the Commons House at the Suit of the Duke of Buckingham was condemned in the Exchequer in 1000 l. damages for a Trespass done to him The 14 of February the Commons moved in the Vpper House That their Speaker might be set at liberty to exercise his place The Lords refer this Case to the Iudges and Fortescue and Prisoit the two chief Iustices in the name of all the Iudges after sad consideration and mature deliberation had amongst them answered and said That they ought not to answer to this question for it hath not been used aforetime That the Iustices should in any wise determine the Priviledg of this High Court of Parliament for it is so high and mighty in its nature that it may make Laws and that that is Law it may make no Law and the determination and knowledg of that Priviledg belongeth to the Lords of the Parliament and not to the Iustices But as for proceedings in the lower Courts in such cases they delivered their Opinions And in 12 E. 4. 2. in Sir John Pastons case it is holden that every Court shall determine and decide the Priviledges and Customs of the same Court c. XXX Hillary Term 7 Jacobi Regis In the Star-Chamber Heyward and Sir Iohn Whitbrokes Case IN the Case between Heyward and Sir John Whitbroke in the Star-Chamber the Defendant was convicted of divers Misdemeanors and Fine and Imprisonment imposed upon him and damages to the Plaintiff and it was moved that a special Proces might be made out of that Court to levy the said damages upon the Goods and Lands of the Defendant and it was referred to the two chief Iustices whether any such Proces might be made who this Term moved the Case to the chief Baron and to the other Iudges and Barons and it was unanimously resolved by them That no such Proces could or ought to be made neither for the damages nor for the costs given to the Plaintiff for the Court hath not any power or Iurisdiction to do it but onely to keep the Defendant in prison until he pay them For for the Fine due to the King the Court of Star-Chamber cannot make forth any Proces for the levying of the
delivered to the party without difficulty if the Ecclesiastical Iudg when the cause which depends before him is meer Ecclesiastical denyeth the Libel a Prohibition lieth because that he doth against the Statute and yet no Prohibition by any express words is given by the Statute And upon the same Statute the Case was in 4 E. 4. 37. Pierce Peckam took Letters of Administration of the Goods of Rose Brown of the Bishop of London and afterwards T. T. sued to Thomas Archbishop of Canterbury That because the said Rose Brown had Goods within his Diocess he prayed Letters of Administration to be committed to him upon which the Bishop granted him Letters of Administration and afterwards T. T. libelled in the Spiritual Court of the Archbishop in the Arches against Pierce Peckam to whom the Bishop of London had committed Letters of Administration to repeal the same and Pierce Peckam according to the said Statute prayed a Copy of the Libel exhibited against him and could not have it and thereupon he sued a Prohibition and upon that an Attachment And there Catesby Serjeant moved the Court that a Prohibition did not lie for two causes 1. That the Statute gives that the Libel shall be delivered but doth not say that the Plea in the Spiritual Court shall surcease by Prohibition 2. The Statute is not intended of matter meer spiritual as that case is to try the Prerogative and the Liberty of the Archbishop of Canterbury and the Bishop of London in committing of Administrations And there Danby Chief Iustice If you will not deliver the Libel according to the Statute you do wrong which wrong is a temporal matter and punishable at the Common Law and therefore in this case the party shall have a special Prohibition out of this Court reciting the matter and the Statute aforesaid commanding them to surcease until he had the Copy of the Libel delivered unto him which case is a stronger case then the case at the Bar for that Statute is in the Affirmative and the said Act of 2 E. 6. cap. 13. is in the Negative scil That no Suit shall be for any Tythes of any Land in kinde where there is Modus Decimandi for that is the effect of the said Act as to that point And always after the said Act in every Term in the whole Reigns of King E. 6. Queen Mary and Queen Elizabeth until this day Prohibitions have been granted in Causa Modi Decimandi and Iudgments given upon many of them and all the same without question made to the contrary And accordingly all the Iudges resolved in 7 E. 6. Dyer 79. Et contemporanea expositio est optima fortissima in lege a communi observantia non est recedendum minime mutanda sunt quae certam habuerunt interpretationem And as to the first Objection That the Plea of Modus Decimandi is but accessary unto the Right of Tythes it was resolved that the same was of no force for three causes 1. In this case admitting that there is Modus Decimandi then by the Custom and by the Act of 2 E. 6. and the other Acts the Tythes in kinde are extinct and discharged for one and the same Land cannot be subject to two manner of Tythes but the Modus Decimandi is all the Tythe with which the Land is chargeable As if a Horse or other thing valuable be given in satisfaction of the Duty the Duty is extinct and gone and it shall be intended that the Modus Decimandi began at the first by real composition by which the Lands were discharged of the Tythes and a yearly sum in satisfaction of them assigned to the Parson c. So as in this case there is neither Principal nor Accessary but an Identity of the same thing 2. The Statute of 2 E. 6. being a Prohibition in it self and that in the Negative If the Ecclesiastical Iudg doth against it a Prohibition lieth as it appeareth clearly before 3. Although that the Rule be general yet it appeareth by the Register it self that a Modus Decimandi is out of it for there is a Prohibition in Causa Modi Decimandi when Lands are given in satisfaction of the Tythes As to the second Objection it was answered and resolved That that was from or out of the Question for status Quaestionis non est deliberativus sed judicialis what was fit and convenient but what the Law is and yet it was said It shall be more inconvenient to have an Ecclesiastical Iudg who is not sworn to do Iustice to give sentence in a case between a man of the Clergy and a Lay-man then for twelve men sworn to give their Verdict upon hearing of Witnesses viva voce before an indifferent Iudg who is sworn to do Right and Iustice to both parties But convenient or inconvenient is not the Question Also they have in the Spiritual Court such infinite exceptions to Witnesses that it is at the Will of the Iudg with which party he shall give his sentence As to the third Objection it was answered and resolved First That satisfactio pecuniaria of it self is Temporal But for as much as the Parson hath not remedy pro Modo Decimandi at the Common Law the Parson by force of the Acts cited before might sue pro Modo Decimandi in the Ecclesiastical Court but that doth not prove That if he sueth for Tythes in kinde which are utterly extinct and the Land discharged of them that upon the Plea de Modo Decimandi that a Prohibition should not lie for that without all question appeareth by all that which before hath been said that a Prohibition doth lie See also 12 H. 7. 24. b. Where the original cause is Spiritual and they proceed upon a Temporal a Prohibition lieth See 39 E. 3. 22 E. 4. Consultation That Right of Tythes which is meerly Ecclesiastical yet if the question ariseth of the limits of a Parish a Prohibition lieth and this case of the limits of a Parish was granted by the Lord Chancellor and not denyed by the other side As to the Objection That an Averment is taken of the refusal of the Plea de Modo Decimandi it was answered and resolved That the same is of no force for divers causes 1. It is onely to inforce the contempt 2. If the Spiritual Court ought to have the Tryal de Modo Decimandi then the refusal of acceptance of such a Plea should give cause of Appeal and not of Prohibition as if an Excommunication Divorce Heresie Simony c. be pleaded there and the Plea refused the same gives no cause of Prohibition as if they deny any Plea meer spiritual Appeal and no Prohibition lieth 3. From the begining of the Law no Issue was ever taken upon the refusal of the plea in Causa Modi Decimandi nor any Consultation ever granted to them because they did not refuse but allowed the plea. 4. The refusal is no part of the matter issuable or material in
Lease be made to one for the lives of J. S. and J. N. there the Freehold doth not determine by the death of one of them for the reasons and causes given in the Case of Brudnel in the fifth part of my Reports fol. 9 Which Case was affirmed to be good Law by the whole Court XXXIII Easter Term anno 8 Jacobi In the Common-Pleas Heydon and Smiths Case RIchard Heydon brought an Action of Trespass against Michael Smith and others of breaking of his Close called the Moor in Ugley in the County of Essex the 25 day of June in the fifth year of the King quendam arborem suum ad valentiam 40 s. ibidem nuper crescen succiderunt The Defendants said that the Close is and at the time of the Trespass was the Freehold of Sir John Leventhrop Knight c. and that the said Oak was a Timber Tree of the growth of thirty years and more and justifies the cutting down of the Tree by his commandment The Plaintiff replyeth and saith That the said Close and a House and 28 Acres of Land in Ugley are Copyhold and parcel of the said Mannor of Ugley c. of which Mannor Edward Leventhrop Esquire Father of the said Sir John Leventhrop was seised 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 custom of the said Mannor and that within the said Mannor there is such a custom Quod quilibet tenens Customar ejusdem Manerii sibi haeredibus suis ad voluntatem Domini c. a toto tempore supradicto usus fuit consuevit ad ejus libitum amputare ramos omnimodum arborum called Pollingers or Husbords super terris tenem suis Customar crescen pro ligno combustibili ad like libitum suum applicand in praedicto Messuagio comburend and also to cut down and take at their pleasure all manner of Trees called Pollengers or Husbords and all other Timber trees super ejusdem Custumariis suis crescen for the reparation of their Houses built upon the said Lands and customary Tenements and also for Ploughbote and Cartbote and that all Trees called Pollengers or Husbords and all other trees at the time of the Trespass aforesaid or hitherto growing upon the aforesaid Lands and Tenements customary of the said Richard Heydon were not sufficient nor did serve for the necessary uses aforesaid And that the said Richard Heydon from the time of the said Grant made unto him had maintained and preserved all trees c. growing upon the said Lands and Tenements to him granted And that after the death of the said Edward Leventhrop the said Mannor descended to the said Sir John Leventhorp and that at the time of the Trespass the aforesaid Messuage of the said Richard Heydon was in decay egebat necessariis reparationibus in Maremio ejusdem Vpon which the Defendant did demur in Law And this Case was oftentimes argued at the Bar and now this Term it was argued at the Bench by the Iustices And in this case these points were resolved 1. That the first part of the Custom was absurd and repugnant scil Quod quilibet tenens Customarii ejusdem Manerii habens tenens aliqua terras seu tenementa Custom c. usus fuit amputare ramos omnimodum arborum vocat Pollingers c. pro ligno combustabili c. in praedicto Messuagio comburend which ought to be in the Messuage of the Plaintiff for no other Messuage is mentioned before which is absurd and repugnant That every customary Tenant should burn his Fuel in the Plaintiffs house But that Branch of the Custom doth not extend unto this case for the last part of the custom which concerneth the cuting down of the Trees concerns the point in question and so the first part of the custom is not material It was objected That the pleading that the Messuage of the Plaintiff was in decay egebat necessariis reparationibus in maremio ejusdem was too general for the Plaintiff ought to have shewed in particular in what the Messuage was in decay as the Book is in 10 E. 4. 3. He who justifieth for Housebote c. ought to shew that the House hath cause to be repaired c. To which it was answered by Coke chief Iustice That the said Book proved the pleading in the case at Bar was certain enough scil Quod Messuagium praed egebat necessariis reparationibus in maremio without shewing the precise certainty and therewith agrees 7 H. 6. 38. and 34 H. 6. 17. 2. It was also answered and resolved That in this case without question it needs not to alledg more certainty for here the Copyholder according to the custom doth not take it but the Lord of the Mannor doth cut down the Tree and carryeth it away where the rest was not sufficient and so preventeth the Copyholder of his benefit and therefore he needeth not to shew any decay at all but onely for increasing of the damages for the Lord doth the wrong when he cutteth down the Tree which should serve for reparations when need should be 3. It was resolved That of common Right as a thing incident to the Grant the Copyholder may take Housebote Hedgbote and Plowbote upon his Copyhold Quia concesso uno conceduntur omnia sine quibus id consistere non potest Et quando aliquis aliquid concedit concedere videtur id sine quo res ipsa esse non potest and therewith agreeth 9 H. 4. Waste 59. But the same may be restrained by custom scil That the Copyholder shall not take it unless by assignment of the Lord or his Bayliff c. 4. It was resolved That the Lord cannot take all the Timber Trees but he ought to leave sufficient for the Reparation of the Customary houses and for Ploughbote c. for otherwise great Depopulation will follow scil Ruine of the Houses and decay of Tillage and Husbandry And it is to be understood That Bote being an ancient Saxon word hath two significations the one compensatio criminis as Frithbote which is as much as to say to be discharged from giving amends for the breach of the peace Manbote to be discharged of amends for the death of man And secondly in the latter signification scil for Reparation as was Bridgbote Burghbote Castlebote Parkbote c. scil Reparation of a Bridg of a Borough of a Castle of a Park c. And it is to be known that Bote and Estovers are all one Estovers are derived of this French word Estouer i. e. fovere i. e. to keep warm to cherish to sustain to defend And there are four kinds of Estovers scil ardendi arandi construendi claudendi scil Firebote Housebote Ploughbote and Hedgbote 5. It was resolved That the Copyholder shall have a general Action of Trespass against the Lord Quare clausum fregit arborem
any Mortuary but in such manner as is mentioned in the Act upon pain of forfeiture of so much in value as they take more then is limited by the Act and forty shillings over to the party grieved Yet it appeareth by Doctor and Student lib. 2. cap. 55. fol. 105. That if the Parson c. sueth for Mortuaries otherwise then the Act appointeth that a Prohibition lyeth yet there is a Penalty added which is an authority expresly in the Point And the Case at Bar is a more strong Case and that for three reasons 1. It was made in affirmance of the Canon Law 2. It was made for the ease of the People and Subjects and for the maintenance of the Iurisdiction of the Ordinary so as the Subjects have benefit by the Act and therefore although that the King may dispence with the penalty yet the Subject greived shall have a Prohibition And the Rule of the Court was Fiat Prohibitio Curiae Cantuar. de Arcub Inter partes praedict per Curiam And Sherly and Harris Iunior Serjeants at Law were of Councell in the Case III. Mich. 6 Jacobi Regis Edwards Case THe high Commissioners in Causes Ecclesiasticall objected divers High Commission Articles in English against Thomas Edwards dwelling in the City of Executer 1. That Mr. John Walton hath been many yeares trained up in Learning in the Vniversity of Oxford and there worthily admitted to severall degrees of Schools and deservedly took upon him the degree of Doctor of Physick 2. That he was a Reverend and well practised man in the Art of Physick 3. That you the said Thomas Edwards are no Graduate 4. That you knowing the Premisses notwithstanding you the said Edwards c. of purpose to disgrace the said Dr. Walton and to blemish his Reputation Learning and Skill with infamy and reproach did against the Rules of Charity write and send to the said Mr. Doctor Walton a lewd and ungoodly and uncharitable Letter and therein tared him of want of Civility and Honesty and want of Skill and Iudgment in his Art and Profession c. And you so far exceeded in your immoderate and uncivill Letter that you told him therein in plaine termes He may be crowned for an Asse as if he had no manner of skil in his Profession and were altogether unworthily admitted to the said Degrees and therein you purposely and advisedly taxed the whole Vniversity of rashnesse and indiscretion for admitting him to that Degree without sufficiency and desert 5. And further to disgrace the said Mr. Doctor Walton in the said Vniversity did publish a Copy of the said Letter to Sir William Courtney and others and in your Letter was contained Sipsilam lichenen mentegram Take that for your Inheritance and thank God you had a good Father And did not you thereby covertly mean and imply That the Father of the said Dr. Walton being late Bishop of Exeter and a Reverend Prelate of this Land was subject to the Diseases of the French Pox and Leprosie to the dislike of the Dignity and Calling of Bishops 6. That in another Letter you sent to Mr. Doctor Maders Doctor of Physick you named Mr. Doctor Walton and made a Horn in your Letter And we require you upon your Oath to set down whether you meant not that they were both Cuckoulds and what other meaning you had 7. You knowing that Dr. Walton was one of the high Commission in the Dioces of Exeter and having obtained a Sentence against him in the Star-Chamber for contriving and publishing of a Libell did triumphingly say That you had gotten on the hipp a Commissioner for Causes Ecclesiasticall in the Dioces of Exeter which you did to vilifie and disgrace him and in him the whole Commission Ecclesiasticall in those parts Lastly That after the Letter missive sent unto you you said arrogantly That you cared not for any thing that this Court can do unto you nor for their censure for that you can remove this matter at your pleasure And this Term it was moved to have a Prohibition in this Case And the matter was well argued And at last it was resolved by Coke chief Iustice Warberton Daniel and Foster Iustices That the first six Articles were meer Temporall concerning Doctor Walton in his Profession of Physick and so touched the Temporall person and a temporall matter and in truth It is in the nature of an Action upon See Book of Entries 444. 447. Non est Juri consentanium quod quis super iis quo rum cognitio ad nos pertinet in Curia Christianitatis trahatur in placita vi Stat. Circumspecte agatis An. 13. E. 1. Episcopus teneat plicita in Curia Christianitatis de his quae sunt mere Spiritualia Et vi Linwood f. 70. Lit. m. dicuntur mere Spiritualia quia non habent mixturam Temporalem vi 22 E. 4. l. Consultat vi 22 E. 4 the Abbot of Sion case the Case for Scandall in his Profession of Physick And yet the Commissioners themselves do proceed in the same Ex Officio And it was resolved that as for them a Prohibition doth lye for divers causes 1. Because that the matter and persons are Temporall 2. Secondly Because it is for Defamation which if any such shall be for the same it ought to begin before the Ordinary because it is not such an Enormous Offence which is to be determined by the high Commissioners And for the same reason Suit doth not lye before them for calling the Doctor Cuckould as it was objected in the seventh Article And it was said that the high Commissioners ought to incur the danger of Premunire 2. It was resolved That the Ecclesiasticall Iudge cannot examine any man upon his Oath upon the intention and thought of his Heart for Cogitationis penam nemo emoret And in cases where a man is to be examined upon his Oath he ought to be examined upon Acts or words and not of the intention and thought of his heart and if every man should be examined upon his Oath what opinion he holdeth concerning any point of Religion he is not bound to answer the same for in time of danger Quis modo tutus erit if every one should be examined of his thoughts And so long as a man doth not offend neither in act nor in word any Law established there is no reason that he should be examined upon his thought or Cogitation For as it hath been said in the Proverb Thought is free And therefore for the sixth and seventh Articles they were resolved as well for the matter as for the form in offering to examine the Defendant upon his Oath of his intention and meaning were such to which the Defendant was not to be compelled to answer Ergo It was resolved that as to the Article he might justifie the same because as it appeareth upon his own shewing that the Doctor was sentenced in the Star-Chamber Also the Libell is matter meer Temporall and if it
Curia nostra non alibi tractari sicut praedict est cedere poterit attentetis sive attentim faciatis quovismodo By which also it appeareth That Tithes may be discharged and that the matter of discharge ought to be determined by the Common Law and not in the Spirituall Court And it is to be observed That in the said Iudgment nor in the Register any averment is taken of the value of the thing given in satisfaction of the Tithes Also by the Act of Circumspecte agatis made 13 E. 1. It is said S. Rector petat versus parochianos oblationes decimas debitas seu consuetas c. which proves that there are Tithes due in kind and other Tithes due by Custome as a Modus Decimandi c. And yet it is resolved in 19 E. 3. Jurisdiction 28. That the Ordinance of Circumspecte agatis is not a Statute and that the Prelates made the same and yet then the Prelates acknowledged That there were Tithes due by Custome which is a Modus Decimandi By which it appeareth also That Tithes by Custome may be altered into another thing So where a man grants a parcel of his Mannor to a Parson in Fee to be quit of Tithes and makes an Indenture and the Parson with the assent of the Ordinary without the Patron grants to him that he shall be quit of Tithes of his Mannor for that parcell of Land Afterwards if he or his Assignee be sued in the Spirituall Court for Tithes of his Mannor he or his Assignee shall have a Prohibition upon that Deed. And if that Deed was made before time of memory and he hath so continued to be quit of Tithes he shall have a Prohibition upon that Deed if he be sued for the Tithes of that Mannor or of any parcell of the same upon that matter shewed See 8 E. 4. 14. F. N. B. 41. g. vi 3. E. 3. 17. 16 E. 3. t. Annuity 24. 40 E. 3. 3. b. and F. N. B. 152. And therefore if the Lord of a Mannor hath alwaies holden his Mannor discharged of tithes and the Parson had before time of memory or in ancient times divers Lands in the same Parish of the Gift of the Lord of which the Parson is seised at this day in Fee in respect of which the Parson nor any of his Predecessors ever had received any tithes of the said Mannor If the Parson now sueth for tithes of the Mannor the Owner of the Mannor may shew that speciall matter and that the Parson and his Successors time out of mind have holden those Lands c. of the Gift of one who was Lord of the said Mannor in full satisfaction of the tithes of the said Mannor And the proof that the Lord of the Mannor gave the Lands that tithes should never be paid at this day is good evidence to prove the surmise of the Prohibition And so of the like and 19 E. 3. t. Jurisdiction 28. it is adjudged That Title of Prescription shall be determined in the Kings Court And therefore a Modus Decimandi which accrueth by Custome and Prescription in the Kings Court And it appeareth by the Statute of 6 H. 4. cap. 6. That the Pope by his Bulls discharged divers from payment of tithes against which the Act of Parliament was made and by the Statute of 31 H. 8. cap. 13. That the Possessions of Religious persons given to the King were discharged of payment of tithes in certain Cases and by the Statute of 32 H. 8. cap. 7. it is provided That all and singular persons shall divide set out yeild and pay all and singular tithes and Offerings aforesaid according to the lawfull customes and usages of the Parishes and places where such tithes or Duties shall come or immediatly arise or be due Provided alwaies and be it enacted That no person or persons shall be sued or otherwise compelled to pay any manner of tithes for any Mannors Lands Tenements or Hereditaments which by the Laws or Statutes of this Realm are discharged or not chargable with the payment of any such tithes And the Statute of 2 E. 6. cap. 13. Enacts That every of the Kings Subjects shall from henceforth justifie and truly without fraud or guile divide set out c. all manner of their prediall tithes in their proper kind as they will rise and happen in such manner and form as hath been of right yeilded and paid within forty years next before the making of this Act or of Right or Custome ought to be paid So as it appeareth by this that tithe is due of Right and by Custom And also in the same Act there is a Proviso in these words Provided alwaies and be it enacted That no person shall be sued or otherwise compelled to yeild give or pay any manner of tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledge or Prescription are not chargable with the payment of any such tithes or that he discharged by any composition reall so as it appeareth by that Act that one may be discharged from the payment of tithes five manner of waies 1. By the Law of the Realm that is the Common Law As Tithes shall not be paid of Coals Quarries Brick Tiles c. F. N. B 53. and Register 54 Nor of the after Pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2. By the Statutes of the Realm As by the Statute of 31 H. 8. cap. 13. the Statute of 45 E. 3. c. 3. By Priviledge as those of S. Johns of Jerusalem in England The Cistertians Temptors c. as it appeareth by 10 H. 7. 277. Dyer 4. By Prescription As by Modus Decimandi or an annuall Recompence in satisfaction of them as appeareth before by the Authorities aforesaid 5. By reall Composition as appeareth by the said Writ cited out of the Register And so you have one or two examples for many others which may be added of these five manners of discharges of Tithes And by them all it appeareth That a man may be discharged of the payment of Tithes as before is said So as now it apparently appeareth by the Laws of England both Ancient and Modern That a Lay-man ought prescribe in modo Decimandi but not in non Decimando and that in effect agrees with the Opinion of Thomas Aquinas in his Secunda secundae Quaest 86. ar ultimo For there he saith Quod in veteri lege praeceptum de solutione Decimarum partim erat morali inditum ratione naturali quae dictat Quod iis Qui Divino Cultui ministrant ad salutem totius populi necessaria victui debent ministr juxta illud 1 Cor. 9. Quis militat c. Who goeth to War at his own charges c. Partim autem erat judiciale ex Divina institutione robur habens scil Quantum ad determinationem certae partis And all that
not of Tythes severed from the nine parts for that shall be in Case of a Praemunire and it appeareth to the Common Law See 16 H. 2. in the Case of Mortuary Vide Decretalia Sexti Lib. 3. tit de Decimis cap. 1. fo 130. Col. 4. Et summa Angelica fo 72. the same And that also appeareth by Linwood amongst the Constitutions Simonis Mephum tit de Decimis cap. Quoniam propter fo 139. 6. verbo Consuetudines Consuetudo ut non solvantur aut minus plene solvantur Decimae non valet and ibidem secundum alios Quod in Decimis realibus non valet Consuetudo ut solvatur minus decima parte sed in personalibus c. And ibidem Litt. M. verbo Integre faciunt expresse contra opinionem quorundum Theologorum qui dicunt sufficere aliquid dari pro Decima And that is the true Reason in both the said Cases scil de modo Decimandi de Limitibus Parochiorum c. that they would not adjudg according to their Canons and therefore a Prohibition lieth and therewith agreeth 8 E. 4. 14. and the other Boóks abovesaid and infinite presidents and the rather after the Statute of 2 E. 6. cap. 13. And also the Customs of the Realm are part of the Laws of the Realm and therefore they shall be tryed by the Common Law as is aforesaid See 7 E. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Iustices VI. Mich. 6 Jacob. in the Exchequer Baron and Boys Case IN the Case between Baron and Boys in an Information upon the Sur Stat. 2 E. 6. cap. 14. of Ingrossers Statute of 5 E. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer That the Defendant had ingrossed Apples against the said Act The Barons of the Exchequer held clearly That Apples were not within the said Act and gave Iudgment against the Informer upon the matter apparent to them and caused the same to be entered in the Margent of the Record where the Iudgment was given and the Informer brought a Writ of Error in the Exchequer chamber and the only Question was Whether Apples were within the said Act the letter of which is That whatsoever person or persons c. shall ingross or get into his or their hands by buying contracting or promise taking other then by Demise Grant or Lease of Land or Tythe any Corn growing in the Fields or any other Corn or grain Butter Cheese Fish or other dead Victual within the Realm of England to the intent to sell the same again shall be accepted c. an unlawful Ingrosser And although that the Statute of 2 E. 6. cap. 15. made against Sellers of Victual which for their great gain conspire c. numbereth Butchers Brewers Bakers Cooks Costermongers and Fruterers as Victualers yet Apples are not dead Victuals within the Statute of 5 E. 6. For the Buyers and Sellers of Corn and other Victuals have divers Provisoes and Qualifications for them as it appeareth by the said Act but Costermongers and Fruterers have not any Proviso for them also always after the said Act they have bought Apples and other Fruits by Ingross and sold them again and before this time no Information was exhibited for them no more then for Plums or other fruit which serveth more for delicacy then for necessary Food But the Statute of 5 E. 6. is to be intended of things necessary and of common use for the sustenance of man and therefore the words are Corn Grain Butter Cheese or other dead Victual which is as much to say as Victual of like quality that is of like necessary and common use But the Statute of 2 E. 6. cap. 15. made against Conspiracies to enhaunce the prices was done and made by express words to extend it to things which are more of pleasure then of profit So it was said That of those Fruits a man cannot be a Forestaller within this Act of 5 E. 6. for in the same Branch the words are any Merchandize Victual or any other thing But this was not resolved by the Iustices because that the Information was conceived upon that branch of the Statute concerning Ingrossers VII Hill 27 Eliz. in the Chancery HIllary Term the 27 of Eliz. in the Chancery the Case was thus One Ninian Menvil seised of certain Lands in Fee took a wife Fine Dower Relation and levyed a Fine of the said Lands with proclamations and afterwards was indicted and out-lawed of High Treason and dyed The Conusees convey the Lands to the Queen who is now seised the five years pass after the death of the Husband The Daughters and Heirs of the said Ninian in a Writ of Error in the Kings Bench reverse the said Attainder M. 26 and 27 Eliz. last past and thereupon the Wife sueth to the Queen who was seised of the said Land as aforesaid by Petition containing all the special matter scil the Fine with proclamations and the five years passed after the death of her Husband the Attainder and the reversal of it and her own title scil her marriage and the seisin of her Husband before the Fine And the Petition being endorsed by the Queen Fiat droit aux parties c. the same was sent into the Chancery as the manner is And in this case divers Objections were made against the Demandant 1. That the said Fine with proclamations should bar the Wife of her Dower and the Attainder of her Husband should not help her for as long as the Attainder doth remain in force the same was a bar also of her Dower so as there was a double bar to the Wife viz. the Fine levyed with proclamations and the five years past after the death of her Husband and the Attainder of her Husband of his Treason But admit that the Attainder of the Husband shall avail the Wife in some manner when the same is now reversed in a Writ of Error and now upon the matter is in Iudgment of Law as if no Attainder had been and against that a man might plead That there is no such Record because that the first Record is reversed and utterly disaffirmed and annihilated and now by Relation made no Record ab initio and therewith agreeth the Book of 4 H. 7. 11. for the words of the Iudgment in a Writ of Error are Quod Judicium praedict Errores praedict alios in Recordo c. revocetur admittetur c. quod ipsa ad possessionem suam sive seisinam suam as the case requireth tenementorum suorum praedictorum una cum exitibus proficuis inde a tempore Judicii praedict reddit praecept ad omnia quae occasione Judicii illius omisit restituatur By which it appeareth that the first Iudgment which was originally imperfect and erroneous is for the same Errors now adnulled and revoked ab initio and the party against whom the Iudgment was given restored to his possession and to
all the mean profits from the time of the erroneous Iudgment given until the Iudgment in the Writ of Error so as the Reversal hath a Retrospect to the first Iudgment as if no Iudgment had been given And therefore the Case in 4 H. 7. 10. b. the case is A. seised of Land in Fee was attainted of High Treason and the King granted the Land to B. and afterwards A. committed Trespass upon the Land and afterwards by Parliament A. was restored and the Attainder made voyd as if no Act had been and shall be as available and ample to A. as if no Attainder had been and afterwards B. bringeth Trespass for the Trespass Mesue and it was adjudged in 10 H. 7. fo 22. b. That the Action of Trespass was not maintainable because that the Attainder was disaffirmed and annulled ab initio And in 4 H. 7. 10. it is holden That after a Iudgment reversed in a Writ of Error he who recovered the Land by Erroneous Iudgment shall not have an Action of Trespass for a Trespass Mean which was said was all one with the principal case in 4 H. 7. 10. and divers other Cases were put upon the same ground It was secondly objected That the Wife could not have a Petition because there was not any Office by which her title of Dower was found scil her marriage the seisin of her Husband and death for it was said that although she was marryed yet if her Husband was not seised after the age that she is Dowable she shall not have Dower as if a man seised of Land in Fee taketh to Wife a woman of eight years and afterwards before her age of nine years the Husband alieneth the Lands in Fee and afterwards the woman attaineth to the age of nine years and the Husband dyeth it was said that the woman shall not be endowed And that the title of him who sueth by Petition ought to be found by Office appeareth by the Books in 11 H. 4. 52. 29 Ass 31. 30 Ass 28. 46 E. 3. bre 618. 9 H. 7. 24. c. As to the first Objection it was resolved That the Wife should be endowed and that the Fine with proclamations was not a bar unto her and yet it was resolved that the Act of 4 H. 7. cap. 24. shall bar a woman of her Dower by a Fine levyed by her Husband with proclamations if the woman doth not bring her Writ of Dower within five years after the death of her Husband as it was adjudged Hill 4 H. 8. Rot. 344. in the Common Pleas and 5 Eliz. Dyer 224. For by the Act the right and title of a Feme Covert is saved so that she take her action within 5. years after she become uncovert c. but it was resolved That the wife was not to be ayded by that saving for in respect of the said Attainder of her Husband of Treason she had not any right of Dower at the time of the death of her Husband nor can she after the death of her Husband bring an Action or prosecute an Action to recover her Dower according to the direction and saving of the said Act But it was resolved That the Wife was to be ayded by another former Saving in the same Act viz. And saving to all other persons scil who were not parties to the Fine such action right title claym and interest in or to the said Lands c. as shall first grow remain descend or come to them after the said Fine ingrossed and proclamations made by force of any Gift in Tail or by any other cause or matter had and made before the said Fine levied so that they take their Actions and pursue their right and Title according to the Law within five years next after such Action Right Claim Title or Interest to them accrued descended fallen or come c. And in this case the Action and right of Dower accrued to the wife after the reversall of the Attainder by reason of a Title of Record before the Fine by reason of the seisin in Fee had and the Marriage made before the Fine levied according to the â—â—â—ention and meaning of the said Act. And as to the said poâ—â—t of Relation It was resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some intent not For Relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same parties to advance a Right or Ut res magis valeat quam pereat But the Law will never make such a construction to advance a wrong which the Law abhorreth Or to defeat Collaterall Acts which are lawfull and principally if they do concern Strangers And this appeareth in this Case scil when an erroneous Iudgment is reversed by a Writ of Error For true it is as it hath been said That as unto the mean Profits the same shall have relation by construction of Law untill the time of the first Iudgment given and that is to favour Iustice and to advance the right of him who hath wrong by the erroneous Iudgment But if any stranger hath done a Trespasse upon the Land in the mean time he who recovereth after the Reversall shall have an Action of Trespasse against the Trespassors and if the Defendant pleadeth that there is no such Record the Plaintiff shall shew the speciall matter and shall maintain his Action so as unto the Trespassors who are wrong Doers the Law shall not make any construction by way of relation ab initio to excuse them for then the Law by a fiction and construction should do wrong to him who recovereth by the first Iudgment And for the better apprehending of the Law on this point it is to know That when any man recovers any possession or seisin of Land in any Action by erroneous Iudgment and afterwards the Iudgment is reversed as is said before and upon that the Plaintiff in the Writ of Error shall have a Writ of Restitution and that Writ recites the first recovery and the reversall of it in the Writ of Error is that the Plaintiff in the Writ of Error shall be restored to his possession and seisin Una cum exitibus thereof from the time of the Iudgment c. Tibi praecipimus quod eadem A. ad plenariam seisinam tenementorum praedict cum pertinentiis sine dilatione restitui facias per sacramentum proborum legalium hominum de Com. suo diligenter inquires ad quantum exitus proficua tenementorum illorum cum pertinentiis a tempore falsi Judicii praedict reddit usque ad Oct. Sanct. Mich. anno c. quo die judcium illud per praefat Justiciar nostros revocat fuit se attingunt juxta verum valorem eorundem eadem exitus proficua de terris catallis praedict B. in baliva tua fieri facias denarios inde praefato A. pro exitibus et proficuis
and Seale put to the Transcript ingrossed and not to the Testament it self and so out of the Statute and the Statute extends only when the Probat and Seale is put to the Testament it self and for the ingrossing of it after the Probate no certain Fee is provided by the Statute But for the Registring of it after it is proved there is an expresse Fee in the Statute But I conceived that the said taking of the fourteen shillings ten pence in the Case at Bar was directly against the Statute For the Act is in the Negative and if the Executor requireth the Testament to be ingrossed in Parchment he ought to agree with him who he requireth to do it as he may But the Ordinary Officiall c. ought not to exact any Fee for the same of the party as a thing due to him for divers Causes 1. Because the words of the Act are expressed for the Probation c. and for the registring sealing writing praysing making of Inventories Fines giving of Acquittances c. which word writing extends expresly to this Case 2. The words are Or any thing concerning the same Probate and when the Seal and Probate is put to the Transcript the same without question concerns the Probate for the Probat is not put to any writing but only to that therefore the same concerns the Probate 3. Such a Construction should make the Act idle and vain for if the Ordinary Officiall c. might take as much as he pleaseth for the ingrossing done by his Ministers as a Fee due to him all the purview of the Statute which is penned so precisely concerning persons scil Bishops Ordinaries and all persons who have power to prove Wills and Testaments Registers Scribes Summoners Apparations or any other the Ministers as for the thing it self scil the probation insinuation approbation registring sealing writing praysing making of Inventories Fines giving of Acquittances or any other thing concerning the same should be all in vain by that evasion of Transcribing of it as well against the expresse Letter of the Act as the intention and moving of it Also the Statute saith five shillings and not above so as the manner of precise penning of it excludes all nice evasions And the Act ought to be expounded to suppresse Extortion which is a great affliction and impoverishing of the poor Subjects 4. As this Case is he annexeth the Probate and Seale to the Transcript ingrossed which the Plaintiff brought with him and offered to the Defendant so as the Case at Bar was without question And generally the Ordinary Officiall c. cannot exact or take any Fee for any thing which concerns the Probate of a Will or Testament but that which the Statute limits And afterwards the Iury found for the Plaintiff and of such opinion was Walmesley Warberton Daniel and Foster Iustices the next Term in all things But upon exception in Arrest of Iudgment for not pursuing of the Act in the Information Iudgment is not yet given c. X. Hillar Anno 6 Jacobi Regis In the Common Pleas. NOta that in this Terme a Question was moved to the Court Aide to make the Kings eldest Son Knight which was this If Tenant in Burgage should pay Ayde unto the King to make his eldest Son Knight And the Point rests upon this If the Tenure in Burgage be a Tenure in Socage For by the ancient Commmon Law every Tenant in Knights Service and every Tenant in Socage was to give to his Lord a reasonable Ayde to make his eldest Son a Knight and to marry his eldest Daughter and that was incertain at the Common Law and also incertain when the same Vide F. N. B. 82. 20. should be paid And this appeareth by Glanvil Lib. 9. cap. 8. fol. 70. who wrote in the time of Henry the second Nihil autem certum Statutum de hujusmodi auxiliis dandis vel exigendis c. sunt alii praeterea See the statute of 27 H. 8 cap 10 of uses in the Preamble concerning Aides to make the eldest Son Knight and to marry the Daughter Casus in quibus licet Dominis auxilia solvenda sunt certa forma praescripta ab hominibus suiis ut silius suus haeres fiat miles vel si primogenitam suam filiam maritaverit c. And in the beginning of the Chapter it is called Rationabile Auxilium because that then it was not certain but to be moderated by reason in respect of Circumstances And by the Preamble of the Statute of West 1. An. 3 E. 1. cap. 35. Where it is said Forasmuch as before that time reasonable Ayde to make ones Son Knight or to marry his Daughter was never put in certain nor when the same ought to be payd nor how much be taken the said Act put the said two incertainties to a certainty 1. That for a whole Knights Fee there be taken but 20 s. and of 20 l. Lands holden in Socage 20 s. and of more more and of less less according to the rate by which the Ayd it self was set certain 2. That none might levy such Ayd to make his son a Knight until his son be of the age of fifteen years nor to marry his daughter until she be of the age of seven years And Fleta who wrote after the said Act calls them rationabilia auxilia ad filium militem faciendum vel ad filiam primogenitam maritandum And by the Statute of 25 E. 1. where it is provided That no Taxes shall be taken but by common consent of the Realm there is an exception of the ancient Ayds c. which is to be intended of these Ayds due unto the King by the ancient Common Law But notwithstanding the said Act of VVestm 1. it was doubted whether the King because he is not expresly named were bound by it and therefore in the twentieth year of E. 3. the King took an Ayd of 40 s. of every Knights Fee for to make the Black Prince Knight and nothing then of Lands holden in Socage and to take away all question concerning the same the same was confirmed to him in Parliament and afterwards anno 25 E. 3. cap. 11. it is enacted That reasonable Ayd to make the Kings eldest Son Knight and to marry his eldest Daughter shall be demanded and levyed after the form of the Statute made thereof and not in other manner that is to say Of every Fee holden of the King without Mean 20 s. and no more and of every 20 l. Land holden of the King without Mean in Socage 20 s. and no more Now Littleton lib. 2. cap. 10. fol. 36. b. Burgage Tenure is where an ancient Borough is of which the King is Lord and those who have Tenements within the Borough hold of the King their Tenements that every Tenant for his Tenement ought to pay to the King a certain Rent and such Tenure is but Tenure in Socage and all Socage Land is contributary to
in the Information was denied in the Kings Bench was utterly denied for the same was moved when two Iudges were in Court who gave not any opinion therein but required Serjeant Hutton who moved it to move the same again when the Court was full c. XII Pasch 7 Jacobi Regis NOte that this Term a Question was moved at Serjeants-Inne Who by the Common Law ought to repair the Bridges common Rivers and Sewers and the High-waies and by what means they shall be compelled to it and first of the Bridges And as to them it is to be known That of common Right all the Country shall be charged to the Reparation of a Bridge and therewith agreeth 10 E. 3. 28. b. That a Bridge shall be levied by the whole Country because it is a common Easement for the whole Country and as to that Point the Statute of 22 H. 8. cap. 5. was but an affirmance of the Common Law And this is true when no other is bound by the Law to repair it but he who hath the Toll of the men or Cattell which passe over a Bridge or Cawsey ought to repaire the same for he hath the Toll to that purpose Et qui sentit commodum sentire debet onus and therewith agrees 14 E. 3. Bar 276. Also a man may be bounden to repaire a Bridge ratione Tenurae of certain Land But a particular person cannot be bound by prescription scil That he and all his Ancestors have repaired the Bridge if it be not in respect of the Tenure of his Land taking of Toll or other profit for the Act of the Ancestor cannot charge the Heir without profit But an Abbot or other Corporation who hath a lawfull being may be charged scil That he and his Predecessors time out of mind c. have repaired the Bridge For the Abbot and Covent may bind their Successors vide 21 E. 4. 28. 27 E. 3. 8. 22 Ass 8. 5 H. 7. 3. And if an Abbot and his Predecessors time out of mind have repaired a Bridge of Almes they shall be compelled to repaire it and therewith agreeth 10 E. 3. 28. So it is of a High-way of common Right all the Country ought for to repaire it because that the Country have their ease and passage by it which stands with the reason of the Case of the Bridge but yet some may be particularly bounden to repaire it as is aforesaid He who hath the Land adjoyning ought of common Right without prescription to scoure and cleanse the Ditches next to the way to his Land and therewith agreeth the Book of 8 H. 7. 5. But he who hath Land adjoyning without prescription is not bound to repair the way So of a common River of common Right all who have ease and passage by it ought to cleanse and scoure it For a common River is as a common Street as it is said in 22 Ass and 37 Ass 10. But he who hath Land adjoyning to the River is not bounden to cleanse the River unlesse he hath the benefit of it scil a Toll or a Fishing or other profit See 37 Ass p. 10. XIII Pasch 7 Jacobi Sir William Reades and Boothes Case IN the great Case in the Star-Chamber of a Forgery Between Sir William Read Plaintiff and Roger Booth and Cutbert Booth and others Defendants the Case was this The said Roger Booth 38 Eliz. was convicted in that Court of the publication of a Writing under Seal forged in the name of Sir Thomas Gresham of a Rent-charge of a hundred pounds cut of all his Lands and Tenements to one Markham for ninety nine years bearing date the one and twentieth year of Queen Elizabeth the said Roger knowing it to be forged And afterwards the said Sir William Read exhibited the said Bill against the said Boothes and others for forging of another writing under Seal bearing date the twentieth of Eliz. in the name of the said Sir Thomas Gresham purporting a Deed of Feoffment of all his Lands except certain to Sir Rowland Heyward and Edward Hoogon and their Heirs to certain uses which was in effect to the use of Markham the younger and his Heirs And for the publication of the said Writing knowing the same to be forged was the Bill exhibited And now upon the hearing of the Cause in the Star-Chamber this Term These doubts were moved upon the Statute of 5 Eliz 1. If one who is convicted of publication of a Deed of Feoffment of Rent-charge knowing the same to be forged Again at another day forge another Deed of Feoffment or Rent-charge if he be within the case of Felony within the said Act which doubt ariseth upon these words eftsoons committed again any of the said Offences And therefore it was objected that he ought to commit again the same natute of Offence scil If he were convicted of Forgery he ought to forge again and not only publish knowing c. And if first he were convicted of publishing knowing c. he ought to offend again in publication knowing c. and not in Forgery for eftsoons which is iterum implyeth that it ought to be of the same nature of Offence The second doubt was If a man committeth two Forgeries the one in 37 of Eliz. and the other in 38. and he is first convicted of the last if he may be now impeached for the first The third doubt was when Roger Booth was convicted in 38 Eliz. and afterwards is charged with a new Forgery in 37 Eliz. If the Witnesses proving in truth that it was forged after the first conviction if the Star Chamber hath Iurisdiction of it The last doubt was when Cutbert Booth who never was convicted of Forgery before if in truth the Forgery was done and so proved in 38 Eliz If he might be convicted upon this Bill because that the Forgery is alledged before that it was done As to the first and second doubts it was resolved by the two chief Iustices and the chief Baron that if any one be convicted of Forgery or publication of any Writing concerning Freehold c. within the first Branch or concerning Interest or Term for years c. within the second Branch and be convicted if afterwards he offend either against the first Branch or second that the same is Felony As if he forgeth a Writing concerning interest for years within the second branch and be convicted and afterwards he forgeth a Charter of Feoffment within the first branch or è converso that that is Felony and that by expresse words of the Act That if any person or persons being hereafter convicted or condemned of any of the said Offences which words any of the said Offences extend to all the Offences mentioned before either in the first branch or in the second branch by any the waies or means above limited shall after any such conviction or condemnation eftsoons commit or perpetrate any of the said Offences in form aforesaid which words Any of the said Offences c.
in the case of Modus Decimandi before and see Register fo 38. when Lands are given in satisfaction and discharge of Tythes 4. See the Statute of Circumspecte agatis Decimae debitae seu consuetae which proves that Tythes in kinde and a Modus by custom c. 5. 8 E. 4. 14. and Fitz. N. B. 41. g. A Prohibition lieth for Lands given in discharge of Tythes 28 E. 3. 97. a. There Suit was for Tythes and a Prohibition lieth and so abridged by the Book which of necessity ought to be upon matter De Modo Decimandi or discharge 7. 7 E. 6. 79. If Tythes are sold for mony by the sale the things spiritual are made temporal and so in the case De modo Decimandi 42 E. 3. 12. agrees 8. 22 E. 3. 2. Because an Appropriation is mixt with the Temporalty scil the Kings Letters Patents the same ought to be shewed how c. otherwise of that which is meer Temporal and so it is of real composition in which the Patron ought to joyn Vide 11 H. 4. 85. Composition by writing that the one shall have the Tythes and the other shall have mony the Suit shall be at the Common Law Secondly By Acts of Parliament 1. The said Act of Circumspecte agatis which giveth power to the Ecclesiastical Iudg to sue for Tythes due first in kinde or by custom i. e. Modus Decimandi so as by authority of that Act although that the yearly sum soundeth in the Temporalty which was payd by Custom in discharge of Tythes yet because the same cometh in the place of Tythes and by constitution the Tythes are changed into mony 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 Statute of Articuli Cleri cap. 1. If corporal pennance be changed in poenam pecuniariam for that pain Suit lieth in the Spiritual Court For see Mich. 8 H. 3. Rot. 6. in Thesaur A Prohibition lieth pro eo quod Rector de Chesterton exigit de Hagone de Logis de certa portione pro Decimis Molendinarium so as it appeareth it was a doubt before the said Statute if Suit lay in the Spiritual Court de Modo Decimandi And by the Statute of 27 H. 8. cap. 20. it is provided and enacted That every of the subjects of this Realm according to the Ecclesiastical Laws of the Church and after the laudable usages and customs of the Parish c. shall yield and pay his Tythes Offerings and other duties and that for substraction of any of the said Tythes offerings or other duties the Parson c. may by due Proces of the Kings Ecclesiastical Laws convent the person offending before a competent Iudg having authority to hear and determine the Right of Tythes and also to compel him to yeild the Duties i. e. as well Modus Decimandi by laudable usage or Custom of the Parish as Tythes in kinde and with that in effect agrees the Statute of 32 H. 8. cap. 7. By the Statute of 2 E. 3. cap. 13. it is enacted That every of the Kings Subjects shall from henceforth truly and justly without fraud or guile divide c. and pay all manner of their predial Tythes in their proper kinde as they rise and happen in such manner and form as they have been of Right yielded and payd within forty years next before the making of this Act or of Right or Custom ought to have been payd And after in the same Act there is this clause and Proviso Provided always and be it enacted That no person shall be sued or otherwise compelled to yield give or pay any manner of Tythes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any priviledg or prescription are not chargeable with the payment of any such Tythes or that be discharged by any compositions real And afterwards there is another Branch in the said Act And be it further enacted That if any person do substract or withdraw any manner of Tythes Obventions Profits Commodities or other Duties before mentioned which extends to Custom of Tything i. e. Modus Decimandi mentioned before in the Act c. that then the party so substracting c. may be convented and sued in the Kings Ecclesiastical Court c. And upon the said Branch which is in the Negative That no person shall be sued for any Tythes of any Lands which are not chargeable with the payment of such Tythes by any Law Statute Priviledg Prescription or Real Composition And always when an Act of Parliament commands or prohibits any Court be it Temporal or Spiritual to do any thing temporal or spiritual if the Statute be not obeyed a Prohibition lieth as upon the Statute de articulis super Cartas ca. 4. Quod Communia Placita non tenentur in Scaccario a Prohibition lieth to the Court of Exchequer if the Barons hold a Common-Plea there as appeareth in the Register 187. b. So upon the Statute of West 2. Quod inquisitiones quae magnae sunt examinationis non capiantur in patria a Prohibition lieth to the Iustices of Nisi Prius So upon the Statute of Articuli super Cartas cap. 7. Quod Constabularius Castr Dover non teneat Placitum forinsecum quod non tangit Custodiam Castri Register 185. So upon the same Statute cap. 3. Quod See Lib. Entr. 450. a Prohibition was upon the Statute that one shall not maintain and so upon every penal Law See F. N. B 39. b. Prohibition to the Common Pleas upon the Stat. of Magna Charta that they do not proceed in a Writ of Praecipe in Capite where the Land is not holden of the King 1 2 Eliz. Dy. 170 171. Prohibition upon the Statute of barrenes and pettit is onely prohibited by implication Senescallus Mariscallus non teneant Placita de libero tenemento de debito conventione c. a Prohibition lieth 185. And yet by none of these Statutes no Prohibition or Supersedeas is given by express words of the Statute So upon the Statutes 13 R. 2. cap. 3. 15 R. 2. cap. 2. 2 H. 4. cap. 11. by which it is provided That Admirals do not meddle with any thing done within the Realm but onely with things done upon the Seas c. a Prohibition lieth to the Court of Admiralty So upon the Statute of West 2. cap. 43. against Hospitalers and Templers if they do against the same Statute Regist 39. a. So upon the Statute de Prohibitione regia Ne laici ad citationem Episcopi conveniant ad recognitionem faciend vel Sacrament praestanda nisi in casubus matrimonialibus Testamentariis a Prohibition lieth Regist 36. b. And so upon the Statute of 2 H. 5. cap. 3. at what time the Libel is grantable by the Law that it be granted and
the plea for the same is no part of the suggestion which onely is the substance of the plea and therefore the Modus Decimandi is proved by two Witnesses according to the Statute of 2 E. 6. cap. 13. and not the refusal which proveth that the Modus Decimandi is onely the matter of the suggestion and not the refusal 5. All the said five matters of Discharge of Tythes mentioned in the said Branch of the Act of 2 E. 6. being contained within a suggestion ought to be proved by two Witnesses and so have been always from the time of the making of the said Act and therefore the Statute of 2 E. 6. clearly intended that Prohibitions should be granted in such causes 6. Although that they would allow bona fide de Modo Decimandi without refusal yet if the Parson sueth there for Tythes in kinde when the Modus is proved the same being expresly prohibited by the Act of 2 E. 6. a Prohibition lieth although the Modus be spiritual as appeareth by the said Book of 4 E. 4. 37. and other the Cases aforesaid And afterwards in the third day of debate of this case before his gracious Majesty Dr. Bennet and Dr. Martin had reserved divers consultations granted in Causa Modi Decimandi thinking that those would make a great impression in the Opinion of the King and thereupon they said That Consultations were the Iudgments of Courts had upon deliberation whereas Prohibitions were onely granted upon surmises And they shewed four Presidents One where three joyntly sued a Prohibition in the case of Modo Decimandi and the Consultation saith Pro eo quod suggestio materiaque in eodem contenta minus sufficiens in Lege existit c. 2. Another in Causa Modo Decimandi to be payd to the Parson or Vicar 3. Where the Parson sued for Tythes in kinde and the Defendant alledged Modus Decimandi to be payd to the Vicar The fourth where the Parson libelled for Tythe Wool and the Defendant alledged a custom to reap corn and to make it into sheaves and to set forth the tenth sheaf at his charges and likewise of Hay to sever it from the nine cocks at his charge in full satisfaction of the Tythes of the Corn Hay and Wool To which I answered and humbly desired the Kings Majesty to observe that these have been reserved for the last and center point of their proof And by them your Majesty shall observe these things 1. That the Kings Courts do them Iustice when with their consciences and oaths they can 2. That all the said Cases are clear in the Iudgment of those who are learned in the Laws that Consultation ought by the Law to be granted For as unto the first president the case upon their own shewing appeareth to be Three persons joyned in one Prohibition for three several parcels of Land each of which had a several manner of Tything and for that cause they could not joyn when their interests were several and therefore a Consultation was granted As to the second president The manner of Tything was alledged to be payd to the Parson or Vicar which was altogether uncertain As to the third president The Modus never came in debate but whether the Tythes did belong to the Parson or Vicar which being betwixt two spiritual persons the Ecclesiastical Court shall have Iurisdiction and therewith agreeth 38 E. 3. 6. cited before by Bacon and also there the Prior was of the Order of the Cistertians for if the Tythes originally belonged to the Parson any recompence for them shall not bar the Parson As unto the last president the same was upon the matter of a Custom of a Modus Decimandi for Wool for to pay the Tythe of Corn or Hay in kinde in satisfaction of Corn Hay and Wool cannot be a satisfaction for the Wool for the other two were due of common right And all this appeareth in the Consultations themselves which they shew but understand not To which the Bishop of London said that the words of the Consultation were Quod suggestio praedicta materiaque in eadem contenta minus sufficiens in Lege existet c. so as materia cannot be referred to form and therefore it ought to extend to the Modus Decimandi To which I answered That when the matter is insufficiently or uncertainly alledged the matter it self faileth for matter ought to be alledged in a good sentence and although the matter be in truth sufficient yet if it were insufficiently alledged the plea wanteth matter And the Lord Treasurer said openly to them that he admired that they would alledg such things which made more against them then any thing which had been said And when the King relied upon the said Prohibition in the Register when Land is given in discharge of Tythes the Lord Chancellor said that that was not like to this case for there by the gift of the Land in discharge of Tythes the Tythes were actually discharged but in the case De Modo Decimandi an annual sum is payd for the Tythes and the Land remains charged with the Tythes but ought to be discharged by plea de Modo Decimandi All which was utterly denyed by me for the Land was as absolutely discharged of the Tythes in casu de Modo Decimandi when an annual sum ought to be payd as where Land is given For all the Records and presidents of Prohibition in such cases are That such a sum had been always c. payd in plenam contentationem satisfactionem exonerationem omnium singularium Decimarum c. And although that the sum be not payd yet the Parson cannot sue for Tythes in kind but for the mony for as it hath been said before the Custom and the said Acts of Parliament where there is a lawful manner of Tything hath discharged the Lands from Tythes in kinde and prohibited that no suit shall be for them And although that now as it hath been said the Parsons c. may sue in the Spiritual Court pro Modo Decimandi yet without question at the first the annual payment of mony was as Temporal as annual profits of Lands were All which the King heard with much patience And the Lord Chancellor answered not to that which I had answered him in c. And after that his most excellent Majesty with all his Councel had for three days together heard the allegations on both sides He said That he would maintain the Law of England and that his Iudges should have as great respect from all his Subjects as their predecessors had had And for the matter he said That for any thing that had been said on the part of the Clergy that he was not satisfied and advised us his Iudges to confer amongst our selves and that nothing be encroached upon the Ecclesiastical Iurisdiction and that they keep themselves within their lawful Iurisdiction without unjust vexation and molestation done to his Subjects and without delay or hindering
of Iustice And this was the end of these three days consultations And note That Dr. Bennet in his discourse inveighed much against the opinion in 8 E. 4. 14. and in my Reports in Wrights Case That the Ecclesiastical Iudg would not allow a Modus Decimandi and said That that was the mystery of iniquity and that they would allow it And the King asked for what cause it was so said in the said Books To which I answered that it appeareth in Linwood who was Dean of the Arches and of profound knowledg in the Canon and Civil Law and who wrote in the Reign of King Henry the sixth a little before the said Case in 8 E. 4. in his title de Decimis cap. Quoniam propter c. fo 139. b. Quod Decimae solvantur c. absque ulla diminutione and in the gloss it is said Quod Consuetudo de non Decimando aut de non bene Decimando non valet And that being written by a great Canonist of England was the cause of the said saying in 8 E. 4. that they would not allow the said plea de Modo Decimandi for always the Modus Decimandi is lesse in value then the Tithes in specie and then the same is against their Canon Quod decimae solvantur absque diminutione quod consuetudo de non plene Decimando non valet And it seemed to the King that that Book was a good Cause for them in the time of King Edward the fourth to say as they had said but I said That I did not relie upon that but upon the grounds aforesaid scil The common Law Statute-Laws and the continuall and infinite judgements and judiciall proceedings and that if any Canon or Constitution be against the same such Canon and Constitution c. is void by the Statute of 25. H. 8. Cap. 19. which see and note For all Canons Constitutions c. against the Prerogative of the King the common Laws Statutes or Customs of the Realm are void Lastly the King said That the high Commission ought not to meddle with any thing but that which is enormious and exorbitant and cannot permit the ordinary Proces of the Ecclesiasticall Law and which the same Law cannot punish And that was the cause of the institution of the same Commission and therefore although every offence ex vi termini is enormious yet in the Statute it is to be intended of such an offence is extra omnem normam as Heresie Schisme Incest and the like great offences For the King said That it was not reason that the high Commission should have conusance of common offences but to leave them to Ordinaries scil because that the party cannot have any appeal in case the high Commisson shall determine of it And the King thought that two high Commissions for either Province one should be sufficient for all England and no more XV. Mich. 39 and 40 Eliz. in the Kings Bench. Bedell and Shermans Case MIch 39 and 40 Eliz. which is entred Mich. 40 Eliz. in the com-Pleas Rot. 699 Cantabr the Case was this Robert Bedel Gent. and Sarah his wife Farmors of the Rectory of Litlington in the County of Cambridge brought an Action of Debt against John Sherman in the custody of the Marshall of the Marshalsey and demanded 550 l. And declared that the Master and Fellows of Clare-Hall in Cambridge were seised of the said Rectory in fee in right of the said Colledge and in June 10. 29 Eliz. by Indenture demised to Christopher Phesant the said Rectorie for 21 years rendering 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute c. which Rent was the ancient Rent who entred into the said Rectory and was possessed and assigned all his interest thereof to one Matthew Batâ— who made his last Will and Testament and made Sarah his wife his Executrix and died Sarah proved the Will and entred and was thereof possessed as Executrix and took to husband the said Robert Bedel by force whereof they in the Right of the said Sarah entred and were possessed thereof and that the Defendant was then Tenant and seised for his life of 300 acres of arable Lands in Litlington aforesaid which ought to pay Tithes to the Rector of Litlington and in anno 38 Eliz. the Defendant grano seminavit 200 acres parcel c. And that the Tithes of the same did amount to 150 l. and that the Defendant did not divide nor set forth the same from the 9 parts but took and carried them away against the form and effect of the Statute of 2 E. 6 c. And the Defendant pleaded Nihil debet and the Iury found that the Defendant did owe 55 l. and to the residue they found Nihil debet c. and in arrest of Iudgement divers matters were moved 1. That grano seminata is too generall and incertain but it ought to be expressed with what kinde of corn the same was sowed 2. It was moved If the Parson ought to have the treble value the forfeiture being by expresse words limited to none by the Act or that the same did belong to the Queen 3. If the same did belong to the Parson if he ought to sue for the same in the Ecclesiasticall Court or in the Kings Temporall Court 4. If the husband and wife should joyn in the Action or the husband alone should have the Action and upon solemn argunent at the Barre and at the Bench the Iudgement was affirmed XVI Trinity Term 7 Jocob in the Court of Wards John Bailies Case IT was found by Writ of Diem clausit extremum That the said John Bailie was seised of a Messuage or Tenement and of and in the fourth part of one acre of land late parcel of the Demesne lands of the Mannor of Newton in the County of Hereford in his Demesne as of fee and found the other points of the Writ and it was holden by the two chief Iustices and the chief Barons 1. That Messuagium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain land or any thing which is holden 2. It was holden that is was void for the whole because that no Town is mentioned in the Office where the Messuage or Tenement or the fourth part of the acre lieth and from the Visne of the Mannor upon a Traverse none can come because it is not affirmed by by the Office that they are parcel of the Mannor but Nuper parcel of the Mannor which implieth that now they are not and it was holden by them that no Melius inquirendum shall issue forth because that the whole Office is incertain and void XVII Trinity 7 Jacobi Regis in the Court of Wards THe Attorney of the Court of Wards moved the two chief Iustices and chief Baron in this Case That a man seised of lands in fee-simple covenants for the advancement of his son and of his name and blood and posterity that he will stand seised
his Deed indented dated the 22 of December in the first year of King James made between him of the one part and the said John Sammes and George Sammes Son and Heir apparent of the said John of the other part did bargain sell grant enfeoff release and confirm unto the said John Sammes the said Mead called Grany Mead to have and to hold the said Mead unto the said John Sammes and George Sammes and their Heirs and Assigns to the onely use and behoof of the said John Sammes and George Sammes their Heirs and Assigns for ever and by the same Indenture Sir Thomas did covenant with John and George to make further assurance to John and George and their Heirs to the use of them and their Heirs and Livery and Seisin was made and delivered according to the true intent of the said Indentures of the within mentioned premisses to the uses within mentioned John Sammes the Father dyeth George Sammes his Son and Heir being within age the Question was Whether George Sammes should be in Ward to the King or no And in this case three points were resolved 1. For as much as George was not named in the premisses he cannot take by the Habendum and the Livery made according to the intent of the Indenture doth not give any thing to George because the Indenture as to him is voyd but although the Feoffment be good onely to John and his Heirs yet the use limited to the use of John and George and their Heirs is good 2. If the Estate had been conveyed to John and his Heirs by the Release or Confirmation as it well may be to a Tenant by Copy of Court Roll the use limited to them is good for upon a Release which creates an Estate a use may be limited or a Rent reserved without question but upon a Release or Confirmation which enures by way of Mitter le droit an use cannot be limited or a Rent reserved But the third was of greater doubt If in this case the Father and Son were Ioynt-tenants or Tenants in common For it was objected when the Father is onely enfeoffed to the onely use of him and his Son and their Heirs in the Per that in this case they shall be Tenants in common By the Feoffment the Father is in by the common Law in the Per and then the limitation of the use to him and his Son and to their Heirs cannot devest the Estate which was vested in him by the common Law out of him and vest the Estate in him in the Post by force of the Statute according to the limitation of the use and therefore as to one moyety the Father shall be in by force of the Feoffment in the Per and the Son as to the other moyety shall be in by force of the Statute according to the limitation of the use in the Post and by consequence they shall be Tenants in common But it was answered and resolved That they were Ioynt-tenants and that the Son in the Case at Bar should have the said Grange by the Survivor for if at the common Law A. had been enfeoffed to the use of him and B. and their Heirs although that he was onely seised of the Land the use was joyntly to A. and B. For a use shall not be suspended or extinct by a sole seisin or joynt seisin of the Land and therefore if A. and B. be enfeoffed to the use of A. and his Heirs and A. dyeth the entire use shall descend to his Heir as it appeareth in 13 H. 7. 6. in Stoners Case and by the Statute of 27 H. 8. cap. 10. of Vses it appeareth That when several persons are seised to the use of any of them that the Estate shall be executed according to the use And as to that which was said That the Estate of the Land which the Father hath in the Land as to the moyetyof the use which he himself hath shall not be devested out of him To that it was answered and resolved That that shall well be for if a man maketh a Feoffment in Fee to one to tho use of him and the Heirs of his body in this case for the benefit of the issue the Statute according to the limitation of the uses devests the Estate vested in him by the common Law and executes the same in himself by force of the Statute and yet the same is out of the words of the Statute of 27 H. 8. which are Where any person c. stand or be scised c. to the use of any other person and here he is seised to the use of himself and the other clause is Where divers and many persons c. be joyntly seised c. to the use of any of them c. and in this case A. is sole seised But the Statute of 27 H. 8. hath been always beneficially expounded to satisfie the intention of the parties which is the direction of the uses according to the Rule of the Law So if a man seised of Lands in Fee-simple by Deed covenant with another that he and his Heirs will stand seised of the same Land to the use of himself and the Heirs of his body or unto the use of himself for life the remainder over in Fee in that case by the operation of the Statute the Estate which he hath at the common Law is devested and a new Estate vested in himself according to the limitation of the use And it is to be known that an use of Land which is but a pernency of the profits is no new thing but part of that which the owner of the Land had and therefore if Tenant in Borrough-English or a man seised of the part of his Mother maketh a Feoffment to another without consideration the younger Son in the one case and the Heir on the part of the Mother on the other shall have the use as they should have the Land it self if no Feoffment had been made as it is holden in 5 E. 4. 7. See 4 and 5 Phil. and Mar. Dyer 163. So if a man maketh a Feoffment unto the use of another in tayl and afterwards to the use of his right Heirs the Feoffor hath the Reversion of the Land in him for if the Donee dyeth without isse the Law giveth the use which was part of the Land to him and so it was resolved Trinity 31 Eliz. between Fenwick and Milford in the Kings-Bench So in 28 H. 8. Dyer 11. the Lord Rosses Case A man seised of one Acre by Priority and of another Acre by Posteriority and makes a Feoffment in Fee of both to his use and it was adjudged that although both pass at one instant yet the Law shall make a Priority of the uses as if it were of the Land it self which proves that the use is not any new thing for then there should be no Priority in the Case See 13 H. 7. b. by Butler So in the Case at Bar The use limited to
same but they estreat the same into the Exchequer which hath power by the Law to writ forth Proces to the Sheriff to levy the same But if a man be convicted in the Star-Chamber for Forgery upon the Statute of 5 Eliz. that in that case for the double costs and damages that an English Writ shall be made directed to the Sheriff c. reciting the conviction and the Statute for the levying of the said costs and damages of the goods and chattels and profits of the Lands of the Defendant and to bring in the mony into the Court of Star-Chamber and the Writ shall be sealed with the great Seal and the Test of the King For the Statute of 5 Eliz. hath given Iurisdiction to the Court of Star-Chamber and power to give Iudgment amongst other things of the costs and damages which being given by force of the said Act of Parliament by consequence the Court by the Act hath power to grant Execution Quia quando aliquid conceditur ei omnia concedi videntur per quod devenitur ad illud And it was resolved That the giving of the damages to the Plaintiff was begun but of late times and although that one or two Presidents were shewed against this Resolution they being against the Law the Iudges had not any regard to them The like Resolution was in the Case of Langdale in that Court XXXI Hillary Term 7 Jacobi Regis In the Common-Pleas Morse and Webbs Case IN a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of November in the third year of the Reign of the King that now is in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conusance because that the place where is an Acre of Land which is the Freehold of the said William Sherington and for damage-feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land in parcel of Downfield and that he himself at the time and before the taking c. was and yet is seised of two yard Land with the appurtenances in Luddington aforesaid And that he and all those whose Estate he hath in the said two yards of Land time out of minde c. have used to have Common of pasture per totam contentam of the said place called the Downfield whereof c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep at certain times and seasons of the year as to the said two yards Lands with the appurtenances appertaining and that he put in the said two Oxen to use his Common c. And the Defendant did maintain his Avowry and traversed the Prescription upon which the parties were at issue and the Iury gave a special Verdict That before the taking one Richard Morse Father of the said John Morse and now Plaintiff whose Heir he is was seised of the said two yards Lands and that the said Richard Morse c. had the Common of Pasture for the said Cattel per totum contentum of the said Downfield in manner and form as before is alledged and so seised The said Richard Morse in the twentieth year of Queen Elizabeth demised to William Thomas and John Fisher divers parcels of the said two yards Lands to which c. viz. the four Buts of arable with the Common and intercommon to the same belonging for the term of four hundred years by force of which the said William Thomas and John Fisher entered and were possessed and the said Richard so seised dyed thereof seised by which the said two yards Lands in possession and Reversion descended to the said John Morse the now Plaintiff And if upon the whole matter the said John Morse now hath and at the time of the taking c. had Common of Pasture c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep c. as to the said two Acres of Land with the appurtenances belonging in Law or not the Iury prayed the advice of the Court. Note that this Plea began Trin. 5 Jacobi Rot. 1405. And upon Argument at the Bar and at the Bench it was resolved by the whole Court that it ought to be found against the Defendant who had traversed the Prescription For although that all the two years Lands had been demised for years yet the Prescription made by the Plaintiff is true for he is seised in his Demesn as of Fee of the Freehold of the two yards of Land to which c. And without question the Inheritance and Freehold of the Common after the years determined is appendant to the said two yard Lands and therefore clearly the issue is to be found against the Defendant But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in evidence 2. It was resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shall have Common Rateable and in such manner that the Land in which c. shall not be surcharged and if so small a parcel be demised which will not keep one Ox nor a Sheep then the whole Common shall remain with the Lessor so always as the Land in which be not surcharged 3. It was resolved That Common appendant unto Land is as much as to say Common for Cattel levant and couchant upon the Land in which c. So that by the severance of part of the Land to which c. so prejudice can come to the Ter-tenant in which c. 4. See the Case of in the fourth part of my Reports fo was affirmed for good Law and there is no difference when the Prescription is for Cattel levant and couchant and for a certain number of Cattel levant and couchant But when the Prescription is for Common appurtenant to Land without alledging that it is for Cattel levant and couchant there a certain number of the Cattel ought to be expressed which are intended by the Law to be levant and couchant XXXII Hill 7 Jacobi Regis In the Common-Pleas Hughes and Crowthers Case IN a Replevin between Robert Hughs Plaintiff and Richard Crowther Defendant which began Trin. 6 Jacobi Rot. 2220 The Case was that Charls Fox was seised of six acres of Meadow in Bedston in the County of Salop in Fee and 10 Octob. 9 Eliz. leased the same to Charls Hibbens and Arthur Hibbens for 60 years if the aforesaid Charls Hibbens and Arthur Hibbens should so long live and afterward Charls died and if the Lease determine by his death was the Question and it was adjudged That by his death the Lease was determined for the life of a man is meer collaterall unto the Estate for years otherwise it is if a
certain Lands in Hetherset and Windham in Norfolk and doth not say in two parts in three parts to be divided and yet it was good as well in the Declaration as in the Writ for without question the Writ is good de duabus partibus generally and so is the Register See 4 E. 3. 162. 2 E. 3. 31. 2 Assis 1. 10 Assis 12. 10 E. 3. 511. 11 Ass 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appeareth that by the intendment and construction of the Law when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part not divided As if two parts are demanded there remains a third part and when three parts are divided three remains a fourth part c. But when any demand is of other parts in other form there he ought to shew the same specialty as if one demandeth three parts of five parts or four parts of six c. And according to this difference it was so resolved in Jourdens Case in the Kings-Bench and accordingly Iudgment was given in this Term in the Case at Bar. XXVI Mich. 7 Jacobi Regis In the Common-Pleas Muttons Case AN Action upon the Case was brought against Mutton for calling of the Plaintiff Sorcerer and Inchantor who pleaded Not-guilty and it was found against him to the damages of 6 d. And it was holden by the whole Court in the Common-Pleas that no Action lieth for the said words for Sortilegium est rei futuri per sortes exploratio Et Sortilegus sive Sortilegista est qui per sortes futura praenunciat Inchauntry est verbis aut rebus adjunctis aliquid praeter naturam moliri whereof the Poet saith Carminibus Circes socios mutavit Ulyssis See 45 E. 3. 17. One was taken in Southwark with the Head and Visage of a Dead man and with a Book of Sorcery in his Mail and he was brought into the Kings-Bench before Knevet Iustice but no Indictment was framed against him for which the Clarks made him swear that he should never after commit any Sorcery and he was sent to prison and the Head and the Book were burned at Tuthill at the charges of the Prisoner And the ancient Law was as it appeareth by Britton that those who were attainted of Sorcery were burned but the Law is not such at this day but he who is convicted of such imposture and deceit shall be fined and imprisoned And it was said that it was adjudged That if one calleth another Witch that an Action will not lie for it is too general Et dicitur Latine Venefica But if one saith She is a Witch and hath bewitched such a one to death an Action upon the Case lieth if in truth he be dead Conjuration is derived of these words Con and juro Et propria dicitur quando multi in alicujus pernitiem jurant And in the Statute of 5 Eliz. cap. 16. it is taken for Invocation of any evil and wicked Spirits i. est conjurare verbis conceptis aliquos malos iniquos spiritus the same is made Felony But Witchcraft Inchantment Charm or Sorcery is not felony if not by them any person be killed or dyeth So that Conjuration est verbis conceptis compellere malos iniquos spiritus aliquod facere vel dicere c. But a Witch who works any thing by any evil spirit doth not make any Conjuration or Invocation by any powerful names of the Devil but the wicked spirit comes to her familiarly and therefore is called a Familiar But if a man be called a Conjurer or a Witch he shall not have any Action upon the Case unless that he saith That he is a Conjurer of the Devil or of any evil or wicked spirit or that one is a Witch and that she hath bewitched any one to death as is before said And note that the first Statute which was made against Conjuration Witchcraft Sorcery and Inchantment was the Act of 33 H. 8. cap. 8. and by it they were Felony in certain cases special but that Act was repealed by the Statute of 1 E. 6. cap. 12. XXVII Mich. Term 7 Jacobi Regis In the Court of Wards Sir Allen Percies Case SIr John Fitz and Bridget his Wife being Tenants for life of a Tenement called Ramshams the remainder to Sir John Fitz in tail the remainder to Bridget in tail the Reversion to Sir John and his Heirs Sir John and Bridget his Wife by Indenture demised the said Tenement to William Sprey for divers years yet to come except all Trees of Timber Oaks and Ashes and liberty to carry them away rendering Rent and afterwards Sir John dyed having issue Mary his daughter now the Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for seven years The Question was Whether Sir Allen having the immediate inheritance in the right of his Wife expoctant upon the Estate for the life of Bridget and also having the possession by the said Demise might cut down the Timber Trees Oaks and Ashes And it was objected that he might well do it for it was resolved in Saunders Case in the fifth part of my Reports fo 12. That if Lessee for years or for life assigns over his term or Estate unto another excepting the Mines or the Trees or the Clay c. that the exception is voyd because that he cannot except that which he cannot lawfully take and which doth not belong unto him by the Law But it was answered and resolved by the two chief Iustices and the chief Baron That in the Case at Bar the Exception was good without question because that he who hath the Inheritance joyns in the Lease with the Lessee for life And it was further resolved That if Tenant for life Leaseth for years excepting the Timber Trees the same is lawfully and wisely done for otherwise if the Lessee or Assignee cutteth down the Trees the Tenant for life should be punished in Waste and should not have any remedy against the Lessee for years and also if he demiseth the Land without exception he who hath the immediate Estate of Inheritance by the assent of the Lessee may cut down all the Timber Trees which when the term ended all should be wasted and then the Tenant for life should not have the Boots which the Law giveth him nor the pawnage and other profits of the said Trees which he lawfully might take But when Tenant for life upon his Lease excepteth the Trees if they be cut down by the Lessor the Lessee or Assignee shall have an Action of Trespass Quare vi armis and shall recover damages according to his loss And this case is not like to the said case of Saunders which was affirmed to be good Law for there the Lessee assigned over his whole interest and therefore could not except the Mines
Trees and Clay c. which he had not but as things annexed to the Land and therefore he could not have them when he had departed with his whole interest nor he could not take them either for Reparations or otherwise But when Tenant for life Leaseth for years except the Timber Trees the same remaineth yet annexed to his Freehold and he may command the Lessee to take them for necessary Reparations of the Houses And in the said case of Saunders a Iudgment is cited between Foster and Miles Plaintiffs and Spencer and Bourd Defendants That where Lessee for years assigns over his term except the Trees that Waste in such case shal be brought against the Assignee but in this case without question Waste lieth against the Tenant for life and so there is a difference c. XXVIII Mich. Term 7 Jacobi Regis In the Court of Wards Hulmes Case THe King in the right of his Dutchy of Lancaster Lord Richard Hulm seised of the Mannor of Male in the County of Lancaster holden of the King as of his Dutchy by Knights service Mesne and Robert Male seised of Lands in Male holden of the Mesn as of his said Mannor by Knights service Tenant Richard Hulm dyed after whose death 31 Hen. the eight it was found that he dyed seised of the said Menalty and that the same descended to Edward his Son and Heir within age and found the Tenure aforesaid c. And during the time that he was within age Robert Male the Tenant dyed after which in anno 35 H. 8. it was found by Office That Robert Male dyed seised of the said Tenancy peravail and that the same descended to Richard his Son and Heir within age and that the said Tenancy was holden of the King as of his said Dutchy by Knights service whereas in truth the same was holden of Edward Hulm then in Ward of the King as of his Menalty for which the King seised the Ward of the Heir of the Tenant And afterwards anno quarto Jacobi Regis that now is after the death of Richard Male who was lineal Heir of the said Robert Male by another Office it was found That the said Richard dyed seised of the said Tenancy and held the same of the King as of his Dutchy by Knights service his Heir within age whereupon Richard Hulm Cosin and Heir of the said Richard Hulm had preferred a Bill to be admitted to his Traverse of the said Office found in quarto Jacobi Regis And the Question was Whether the Office found in 35 H. 8. be any estoppel to the said Hulm to Traverse the said last Office or if that the said Hulm should be driven first to Traverse the Office of 35 H. 8. And it was objected That he ought first to Traverse the Office of 35 H. 8. as in the Case of 26 E. 3. 65. That if two Fines be levyed of Lands in ancient Demesn the Lord of whom the Land is holden ought to have a Writ of Deceit to reverse the first Fine and in that the second Fine shall not be a Bar And that the first Office shall stand as long as the same remains in force To which it was answered and resolved by the two Chief Iustices and the Chief Baron and the Court of Wards That the finding of an Office is not any estoppel for that is but an enquest of Office and the party grieved shall have a Traverse to it as it hath been confessed and therefore without question the same is no estoppel But when an Office is found falsly that Land is holden of the King by Knights service in capite or of the King himself in Socage if the Heir sueth a general Livery now it is holden in 46 E. 3. 12. by Mowbray and Persey that he shall not after add that the Land is not holden of the King but that is not any estoppel to the Heir himself who sueth the Livery and shall not conclude his Heir for so saith Mowbray himself expresly in 44 Assis pl. 35. That an Estoppel by suing of Livery shall estop onely himself the Heir during his life And in 1 H. 4. 6. b. there the case is put of express confession and suing of Livery by the issue in tayl upon a false Office and there it is holden that the Iurors upon a new Diem clausit extremum after the death of such special Heir are at large according to their conscience to finde that the Land is not holden c. for they are sworn ad veritatem dicendum and their finding is called veredictum quasi dictum veritatis which reason also shall serve when the Heir in Fee-simple sueth Livery upon a false Office and the Iurors after his death ought to finde according to the truth So it is said 33 H. 6. 7. by Laicon that if two sisters be found Heirs whereof the one is a Bastard if they joyn in a Suit of Livery she which joyneth with the Bastard in the Livery shall not alledg Bastardy in the other but there is no Book that saith that the Estoppel shall endure longer then during his life and when Livery is sued by a special Heir the force and effect of the Livery is executed and determined by his death and by that the Estoppel is expired with the death of the Heir but that is to be intended of a general Livery but a special Livery shall not conclude one But as it is expressed the words of a general Livery are When the Heir is found of full age Rex Escheatori c. Scias quod cepimus homigium I. filii haeredis B. defuncti de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus c. And when the Heir was in Ward at his full age the Writ of Livery shall say Rex c. Quia I. filius haeres B. defuncti qui de nobis tenuit in capite aetatem suam coram te sufficienter probavit c. Ceperimus homagium ipsius I. de omnibus terris tenementis quae idem B. Pater suus tenuit de nobis in capite die quo obiit ei terras tenement illa reddidimus ideo tibi praecipimus ut supra c. Which Writ is the Suit of the Heir and therefore although that all the words of the Writ are the words of the King as all the Writs of the King are and although that the Livery be general de omnibus terris tenementis de quibus B. pater I. tenuit de nobis in capite die quo obiit without direct affirmation that any Mannor in particular is holden in capite and notwithstanding that the same is not at the prosecution of the Kings Writ and no Iudgment upon it yet because the general Livery is founded upon the Office and by the Office it was found That divers Lands or