before the Birth of such Child for in that Case he is not reputed a Bastard who cannot inherit Land as Heir to his Father nor can any person inherit Land as Heir to him but one who is Heir of his Body Otherwise it is in case the Child were begotten by him who after the Birth of the Child doth Marry his Mother For in that Case notwithstanding such Marriage subsequent to the Birth the Child is reputed a Bastard in the judgment of the Common Law as being born out of Wedlock though according to the Ecclesiastical Law the Child in that case is reputed as Legitimate But if one Marry a Woman and dye before Night without ever bedding her and she after happen to have a Child within possibility of conception in respect of time computable from such Marriage it seems it shall be accounted his Child and Legitimate 9. If a Child be born within the tenth Month computing thirty days to the Month next after a Mans death it shall be reputed his Child as a Mulier but the most natural time is nine Months and ten days computing twenty eight days to the Month which is forty Weeks or any day in the tenth Month may be natural enough Also the Children begotten under a second Marriage after a Lawful divorce from a former are Legitimate and not Bastards And the Child wherewith the Mother is visibly big when she taketh a second Husband shall be reputed the Child of the former Husband though born after Marriage with the second Otherwise if at her second Marriage she were so privlly with Child as that it could not be discerned understand it with this limitation if by possibility of nature it may be so And if a Widow take another Husband within ten days next after the death of her former and be delivered of a Child eleven days before or after forty Weeks from the death of the said former Husband it shall be reputed the Child not of the former but of the later Husband And in one Thecker and Duncombes Case it was adjudged that a Woman may have a Child in thirty eight Weeks and that by cold and hard usage she may go with Child above forty Weeks which was mention'd by the Court in the Case of one Owen against Jevon in an Action of the Case for saying This is the Whore that my Man C. begat a Bastard on and upon a Verdict for the Plaintiff it was moved in arrest of Judgement that the words are not Actionable because there is no special loss or dammage alledged by the Plaintiff and that in one Lightfoots Case against Pigot it had been ruled that an Action lies not for saying a Woman had a Bastard but it being argued on the other side that the words are Actionable because if they were true the Party of whom they are spoken is punishable by the Statute of 7 Jac. with corporal punishment Judgement was given for the Plaintiff Nisi 10. The punishment of a Woman that hath a Bastard that may be chargeable to the Parish is the House of Correction for one year by the Statute 11. Although in the judgement of the Common Law a Bastard be reputed quasi nullius Filius insomuch that if being seized of Lands in his own right he dye without Issue of his Body they may Escheat yet even by that Law the Bastard in respect of his Mother is said to be a Son But in respect of the the Father he is said to be nullius Filius and therefore in the Case of Ralph Haward and the Lady Anne Powes his Wife in a Writ of Partition it was held that if the Mother dispose of all her Lands holden in Knights Servive to her Bastard-daughter by conveyance in her life-time that the same is out of the Statute of 32 H. 8. because she is but a meer Stranger to the Father because nullius Filia and the said Statute speaks of Lawful generation And in the 39 Ed. 3. 42. in a Praecipe where a Bastard was named Filius J. S. the Writ for that reason did abate For the same reason also it is that in a conveyance by a Father to his Bastard-son natural affection is not a sufficient consideration for that he is a Stranger in Law although he be a Son in Nature And yet it seems if a Grant be made to a Bastard by the Sirname of him who is supposed to beget him it is good if he be known by such Name and yet in truth he is nullius filius And if Husband and Wife divorced causa Praecontractus the Issue hath lost his Sirname for Cognomen Majorum est ex sanguine tractum and the Issue now is Bastard and nullius filius yet because he had once a Lawful Sirname it is a good ground of reputation to make him a reputed Son which is a good Name of purchase And it hath been resolved that a Child begotten by a second Husband living the former of a Woman divorced from the former causa Praecontractus is legitimate and no Bastard But in another case that a Child begotten after Marriage solemniz'd infra annos nubiles and for that cause after divorced is illegitimate and a Bastard 12. A. takes B. to Wife and dies B. after forty Weeks and ten Days is delivered of a Daughter The question is whether the Daughter shall be Heir to her Father or a Bastard The Affirmative prevails and such a Child may be lawful Daughter and Heir to her Father for a Post-natus that is born after the forty Weeks may as well be an Heir as an Ante-natus that is born at the end of seven Months And a Child may be legitimate although it be born the last day of the tenth Month after the conception thereof computing the Months per menses solares non lunares according to the report given upon Oath by the learned Physicians in Alsop's Case If a Man hath Issue born by his Wife forty Weeks and eight Daies after his death as if he dye the three and twentieth of March and the Issue is born the ninth of January next following that Issue shall be held Legitimate for it may be Legitimate by nature and it seems the Common Law doth not limit any certain time for Legitimate Infants to be born p upon evidence at the Barr which concern'd the Heir of one Andrews it was resolved by the Court that Dr. Paddey and Dr. Momford Physicians should being first sworn in that case inform the Court upon their Oaths whether according to Nature such Issue may be Legitimate and they said that the exact time of the birth of an Infant is 280. dayes from the conception viz. nine Months and ten Days after conception accounting it by the Solar months viz. 30. days to each month but it is Natural also if he be born any time of 10 Months viz. in 40 Weeks for by such
reference to the Cognizance of the Temporal and Spiritual Courts in point of Slander 5. Whether Action lies for calling one Quean 6. Prohibition for suing in the Ecclesiastical Court for words tending to the obstruction of a Marriage 7. Matters determinable at Common Law not Cognizable in the Ecclesiastical Courts 8. Whether these words Thou hast taken a false Oath be Actionable and in what Court 9. Whether Action lies at Common Law for saying Thou art a Whore c. 10. Words of Slander to the â—inderance of Marriage are Actionable at the Common Law 11. Defamatory words Thou art a Bawd and keepest a Bawdy house whether and where Actionable 12. To say A. is a Cuckold and that B. had layen with the Wife of A. is a Defamation suable in the Spiritual Court 13. The Difference as to Cognizance between the words Thou art a Bawd and I will prove thee a Bawd and the words Thou keepest a House of Bawdry 14. To say Thou art a Drunkard or a Drunken Fellow whether such words are suable in the Ecclesiastical Court 15. The words he is a Cuckoldly knave are suable not in the Temporal but in the Ecclesiastical Court 16. Whether the calling of Pimp Common Pimp be Actionable and in what Court 17. Welch Jâ—de expounded to be Welch whore and cognizable in the Ecclesiastical Court 18. Whether the words Quean or Base Quean be Actionable in the Ecclesiastical Court 19. Action in that Court for Scandalizing a Parson 20. Whether Action lies in the Ecclesiastical Court for saying of one that kept a Victualling house that she kept a House of Bawdry 21. Whether the words Thou art a Pander be Actionable at the Common Law 22. Church-wardens presentment of a Feme Covert upon a Common Report for Adultery and Action of Defamation brought in the Ecclesiastical Court thereon 23. Whether Action upon the Case for words lies against an Infant of Seventeen years of age 24. Several other Cases at the Common Law pertinent to this Subject of Defamation what of them cognizable in the Ecclesiastical Court and wherein the Prohibition lies or not 1. DEFAMATION properly so called is the utterance of Reproachful Speeches with intent of raising an ill Fame of the Party so reproached Defamare est in mala Fama ponere Bart. l. turpia ff de Legat. 3. This extends it self to Writing as by defamatory Libels as also to Deeds as by Reproachful Postures Signs and Gestures Lindw c. authoritate verb. quacunque in gloss de Sent. Excommunicat And as for the most part it proceeds of malice implying matters either of Crime or Defect so it generally aims at some prejudice or dammage to the Party defamed Whatever Cognizance the Temporal Laws of this Realm do take of Defamations by vertue of Prohibitions and Actions upon the Case yet it will not be denied but that the Cognizance of Defamations where they are duly prosecuted doth properly belong to the Spiritual Law specially where the matter of the Defamation is only Ecclesiastical 2. In all causes of Defamation the Party defamed had his Election by the Civil Law whether he would prosecute the Defamer ad Vindictam publicam or ad privatum interesse the former whereof was made choice of where the Defamed aimed more at the Defamers shame than his own Interest and chose rather to reduce him to a Recantation than augment his Cash by his own Credit 's diminution l. in constitutionib § ult ff L. Cornel. The other viz. ad privatum interesse was chosen by such Defamed ones as valued their Credit at a certain Rate and chose rather a Pecuniary Compensation than an unprofitable Recantation aiming more at their own private satisfaction than at the Defamers publick Disgrace l. stipulationum § plane ff de verbor obligat l. si quis ab alio ff de re judic But both of these the Defamed could not have for having determined his Election he was therewith to rest satisfied only having obtained a Sentence against the Defamer for his Recantation or publick Disgrace by prosecuting him ad publicam vindictam he might possibly have in Lieu thereof a pecuniary Recompence by way of Commutation The Prosecution ad publicam vindictam was left to the determination of the Ecclesiastical Jurisdiction the other to the Cognizance of the Secular Much in conformity to what the Laws of this Realm in Cases of Defamation seem to say viz. where the Prosecution is meerly for the Punishment of Sin and Money not demanded there the Spiritual Court shall have the Cognizance But where Money is demanded in satisfaction of the Wrong there the Temporal specially if the Defamer undertake to justifie the matter or the words express or imply a Crime belonging to the Cognizance of the Common Law These Actions of Defamation are of a higher Nature than they seem primo intuitu to be a mans good Name being Equilibrious with his Life and therefore the Law calls them Actiones praejudiciales that is such as draw lesser Causes to them but themselves are drawn of none 3. One Libelled against another in the Ecclesiastical Court for saying That he was a Drunkad or a Drunken Fellow and an addle Drunken Fellow and by the opinion of the whole Court a Prohibition was granted and for such words a Prohibition was granted in C. B. in the Case of Martin Calthorp 4. One moved at the Barr for a Prohibition to the Ecclesiastical Court on a Suit there depending for calling one Bawd Jones Justice conceived that these Differences ought to be observed where a Man calls a Woman Whore or such like Slander for which Suit lies in the Ecclesiastical Court against the Party if the matter appear in that Case Suit lies for Slander there and no Prohibition lies è contra if a man be called Thief Traytor or the like whereon no Suit lies for the Principal in the Ecclesiastical Court but at the Common Law if one be sued for such Slander in the Ecclesiastical Court a Prohibition lies If a man call one Bawd for which Suit lies at the Spiritual Court and also at the Common Law there if the Suit be for Slander in the Ecclesiastical Court in that case no Prohibition lies for the Party hath Election to sue in which Court she please So if a Woman be Slandered in her Reputation whereby she is hindered in her Marriage she may sue either at the Common Law or in the Spiritual Court for Slander And lastly if a man speak any words for which no Suit lies at Common Law nor are such as concern any thing whereof the Ecclesiastical Court takes Cognizance it seems that in such Case if Suit be in the Spiritual Court for Slander as for Convitia a Prohibition lies as for calling one Knave Drunkard or the like Quaere of that the Chief Justice agreed to that the others said nothing therein 5. A Suit was commenced in the Ecclesiastical Court where the Lilbel was that he called the Plaintiff
Quean or words to that effect or importing the same Sense in this Case a Prohibition was granted 1 Because no Action lies for that Word Quean 2 For the uncertainty thereof 6. The Defendant said to one Anthony Elcock who was a Suiter to the Plaintiff and with whom there was near an Agreement of Marriage I know Davies Daughter well she did dwel in Cheapside and a Grocer did get her with child and the Plaintff declared that by reason of these Words Elcock refused to take her to Wife Adjudged that the Action would lie at the Common Law and the Suit was not to be in the Spiritual Court for Defamation but at the Common Law for that she is prejudiced in that which should be her Temporal advancement and the ground of the Action is Temporal The truth of the Case was this an Action upon the Case for a Slander was brought by Anne Davies against John Gardiner That whereas there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock the Defendant to the intent to hinder the said Marriage said and published that there was a Grocer in London that did get her with Child and that she had the Child by the said Grocer whereby she lost her Marriage To which the Defendant pleaded Not guilty and was found guilty at the Assizes at Aylesbury to the dammages of Two hundred Marks and now it was alledged in Arrest of Judgment that this matter appeareth to be meerly Spiritual and therefore not determinable at Common Law but to be prosecuted in the Spiritual Court. But per Curiam the Action lies here for a Woman not Married cannot by intendment have so great advancement as by her Marriage whereby she is sure of maintenance for her life or during her Marriage and Dower and other benefits which the Temporal Laws give by reason of her Marriage and therefore by this Slander she is greatly prejudiced in that which is to be her Temporal advancement for which it is reason to give her remedy by way of Action at Common Law As if a Woman keep a Victualling house to which divers of great credit repair whereby she hath her livelyhood and one will say to her Guests that as they respect their Credits they take care how they use such a House for there the Woman is known to be a Bawd whereby the Guests avoid the House to the loss of her Husband shall not she in this Case have an Action at Common Law for such a Slander It is clear that she shall So if one saâ—th that a Woman is a Common Strumpet and that it is a Slander to them to come to her House whereby she loseth the advantage that she was wont to have by her Guests she shall have her Action for this at Common Law So here upon these collateral circumstances whereby it may appear that she hath more prejudice than can be by calling of one Harlot and the like And judgment was given for the Plaintiff 7. Touching Defamation for which Suit is in the Ecclesiastical Court. Resolved the matter must be meer Spiritual and determinable only there for if it concern any matter which is determinable at the Common Law the Ecclesiastical Judge hath not the cognizance thereof 8. Action was for these words Pierce hath taken a false Oath in the Court of Consistory of Exeter It was objected that for matters in the Spiritual Court an Action will not lye And the Stat. of 5 Eliz. of Perjury doth not extend to those Courts but it was resolved that the Action did lye for these words and that the Statute doth extend to such and the like Courts as the Court of Star-chamber c. And the words that he hath taken a false Oath shall be intended actively and shall amount to these words He is forsworn In this Case it was said by Prideoux that these words are Actionable although the Perjury be supposed to be committed in the Spiritual Court for he shall be Excommunicated if he will not appear and he shall do penance in a white sheet which is as great a disgrace as to be set upon the Pillory And it was ruled in an Action upon the Case betwixt Dorrington and Dorrington upon these words Thou art a Bastard that an Action lieth and yet Bastardy is a Spiritual matter and there determinable so for these words Thou art a Pirate an Action lieth and yet Piracy is not punishable by the Common Law but in the Court of Admiralty And these words He hath taken a false Oath do amount to these words He is forsworn Wray conceived that the words are not Actionable for there is a Proviso in the Statute of Eliz. cap. 9. that the said Act shall not extend to any Ecclesiastical Court but that every such Offender shall be and may be punished by such usual and ordinary Laws as heretofore have been and are yet used and frequent in the said Ecclesiastical Court Gaudy upon these words an Action doth not lye for they are not pregnant of any Perjury in the Plaintiff for he may be meer passive in it for if one of the Masters of the Chancery Minister an Oath to any person or any Commissioners c. and the Plaintiff sweareth falsly a Man may say that the Master of the Chancery or the Commissioners have taken a false Oath and yet he is not guilty of falsity And afterwards Mutata Opinione Wray that the Proviso in the said Statute is to this intent such an offence may be enquirable and examined in the Ecclesiastical Court in such manner as was before but the same doth not take away or restrain the Authority of the Common Law but that such an Offence may be here examined c. And as to the latter exception upon these words he hath taken a false Oath it shall be intended Actively and not Passively And if so the Defendant ought to have so pleaded it And afterwards Judgement was given for the Plaintiff 9. Pollard and his Wife brought an Action against Armshaw for these words viz. Thou art a Whore for I. S. Goldsmith hath the use of thy Body and the Cart is too good for thee Per Curiam the Action will not lie for the Common Law cannot define who is a Whore but where if one keep a Victualling House it be said she keeps a house of Bawdry an Action will lie 10. Action upon the Case for words of Defamation Whereas the Plaintiff was a Person of good Fame and always free from Adultery and Fornication c. And after the death of Brian her late Husband was in Communication with one Cowley for a Marriage betwixt them That the Defendant to deprive her of her Fame and to hinder her from the said Marrige spake of the Plaintiff these words viz. she is a Whore and her Children innuendo her Children which she had by the said Brian late her Husband are Frambishes Bastards innuendo one Nicholas Frambish
After Verdict upon Not Guilty found for the Plaintiff it was moved in Arrest of Judgment by Grimston that these words are not Actionable For for calling Whore there lies not any Action and to say that her Children by her former Husband are Frambishes Bastards is repugnant in it self for they cannot be Bastards which were born in the time of her former Husband But all the Court held that the Action well lies For to say of a Widow who is in Comnunication of Marriage with another that she plaid the Whore in her former Husbands time is a great Discredit And to say that her Children are Bastards although in truth they cannot be Bastards in Law yet in Reputation they may be so is cause of loss of her Marriage and that none will marry with her wherefore it was adjudged for the Plaintiff 11. Action upon the Case Whereas he keepeth an Alehouse Licenced by Justices of the Peace that the Defendant to scandalize the Plaintiffs Wife spake these words of her Hang thee Bawd Thou art worse than a Bawd Thou keepest a House worse than a Bawdy house And thou keepest a Whore in thy House to pull out my Throat Upon not guilty pleaded found for the Plaintiff Stone moved in Arrest of Judgment that these words are not Actionable but agreed that for saying One is a Bawd and keeps a Bawdy house Action lies because it is a temporal Offence for which the Common Law inflicts punishment But to call one Bawd without further speaking an Action lies not no more than to call one Whore But it is a Defamation punishable in the Spiritual Court And to say That be keeps a House worse thaâ— a Bawdy house hath not any intendment what he means thereby wherefore the Action lies not And if it be intended that such words should hinder Guests from coming thither being an Alehouse the Husband only ought to have brought the Action And as to that the Court absente Richardson agreed But for the other words they held the Action lies by the Husband and Wife for the slander to his Wife and it is as much as if he had said that she keepeth a Bawdy house wherefore it was adjudged for the Plaintiff 12. A prohibition was prayed bâ—cause A. and his Wife sued in the Ecclesiastical Court for Defamation and speaking these words of the Plaintiff He was a Cuckold and a Wittal which is worse than a Cuckold and that Aylsworth had layen with Ayloffs Wife And for these Defamatory words he sued there and because it was alledged that for these words being but words of Spleen Prohibitions had been usually granted day was thereupon given until this Term to shew cause why a Prohibition should not be granted and divers presidents were shewd that for calling one Cuckold or Whore Prohibitions have been granted But now upon advertisement all the Court agreed that no Prohibition should be granted but that the Ecclesiastical Court should have Jurisdiction thereof For although they agreed that there ought not to have been any Suit for the first words they being too general yet being coupled with a particular shewing that the Wife committed such an Offence with such a particular person they be not now general words of spleen in common and usual discourse and parlance But they held it was a Defamation suable in the Spiritual Court whereupon the Prohibition was denied Brownlow chief Protonotary produced on that occasion several presidents where Prohibitions had been granted to stay Suits for such words viz. Trin. 15. Jac. rot 2260. Purchas vers Birrel for that he was presented at several enquests within his Parish for being a Drunkard and a Barretor And Pasch 6. Jac. rot 397. Prohibition to stay a Suit for calling a Parson Hedge-Priest And Mich. 21. Jac. Barker vers Pasmore She is a Quean and a tainted Quean Prohibition granted 13. H. Prays a Prohibition to stay a Suit in the Spiritual Court of Defamation for speaking these words Thou art a Bawd and I will prove thee a Bawd And because these are words properly dererminable in the Spiritual Court and for which no Action lies at the Common Law a prohibition was denied But for saying Thou keepest a house of Bawdry this being matter determinable at Common Law by Indictment Suit shall not be in the Spiritual Court vid. 27 H. 8. and Co. lib. 4. fo 20. 14. Prohibition was prayed to the Ecclesiastical Court to stay a Suit there for Defamation for these words Thou art a Drunkard or drunken fellow And by the opinion of Croke Jones and Berkley a Prohibition was granted For these words do not concern any Spiritual matter but meerly Temporal and they be but Convitium Temporale and a common phrase of brawling for which there ought not to be a Suit in the Spiritual Court and so it was held in Martin Calthorp's Case in C. B. but Richardson doubted thereof because the Spiritual Court as well as the Temporal may meddle with the punishment of drunkenness so it is not meerly Temporal But he assented to the grant of a Prohibition and the Party may if he will demurr thereto whereupon a Prohibition was granted 15. Prohibition was prayed by Bulstrod for Gobbet to stay a Suit in the Spiritual Court for Defamation in speaking these words He is a Cuckoldly Knave and cited presidents that for saying He is a Knave and a cheating Knave Suit being in the Spiritual Court a Prohibition was granted upon good advisement and the Court said that president is not like to this Case for there was not any offence wherewith the Spiritual Court ought to meddle but in this Case for these words it is properly to be examined and punished there pro reformatione morum for it is a disgrace to the Husband as well as to the Wife because he suffers and connives at it whereupon absente Richardson the Prohibition was denied Again it was moved that this should be granted upon the Statute of 23 H. 8. because he was sued in the Court of the Arches which is in the Archbishops Jurisdiction and the words were spoken at Thistleworth in London Diocess as appeared by the Libel But Jones said that he was informed by Dr. Duck. Chancellor of London that there hath been for long time a composition betwixt the Bishop of London and the Archbishop of Canterbury that if any Suit be begun before the Archbishop it shall be always permitted by the Bishop of London so as it is quasi a general License and so not sued there but with the Bishops assent and for that reason the Archbishop never makes any Visitation in London Diocess And hereupon also the Prohibition was denied 16. Action for that the Defendant had said of and to the Plaintiff being of good same and one who had served as Captain in the Wars haec verba in London Thou art a Pimp averring that in London that word was known to be intended a Bawd and further said that he
Faggots be mistaken yet if it appears that he made his Suggestion according to the Copy of the Libel given him by his Proctor no Consultation shall be brought for by the Statute of 2 H. 5. he ought to have a true Copy of the Libel 30. The Case was where A. sued B. for Tithes within the Parish of C. B. said they were within the Parish of D. and the Parson of D. came pro interesse suo and they proceed there to Sentence Question if in such a Parish or such a Parish shall be tried by the Law of the Land or of the Church Wray said It was Triable by the Common Law Fenner said the Pope hath not distinguished of Parishes but Ordained that Tithes shall be paid within the Parish 31. K. â—arson of S. sued C. in the Spiritual Court for Tithes of certain Lands in the Parish of S. D. Plaintiff in the Prohibition came pro interesse suo and said there was a Custome within the Parish of S. that the Parson of H. shall have Tithes 13 Cheeses of the Lands in S. and in recompence thereof the Parson of S. had 13 Cheeses for the Tithes of H. It was said the Right of Tithes were in question and not the Bounds of the Parish and therefore no Prohibition and of that Opinion was the Court and a Consultation awarded 32. If an Administration be granted to A. where it ought not to be granted to him and after the Administration be Repealed and granted to B. for that he is the next of Kin In this case B. may sue A. in the Ecclesiastical Court to Account for the profits of the Goods and Chattels of the Deceased during his time and no Prohibition to be granted for B. cannot have an Action of Trespass against A. nor hath he any remedy for them at the Common Law 33. A Parson may sue in the Ecclesiastical Court for a Modus Decimandi and no Prohibition shall be granted for it is in the nature of Tithes But a Prescription cannot be tried in the Ecclesiastical Court for that it ought to be tried by a Jury which cannot be there Yet if a Parson Prescribe to have Tithes of things not Tithable as of Rents of Houses he may sue for that in the Ecclesiastical Court and no Prohibition lies yet no Tithes de jure ought to be paid of them So he may sue in the Ecclesiastical Court for the Tithes of great Trees which he claims by Prescription and no Prohibition lies yet de jure they are not Tithable Quaere 9 H. 6. 46. 34. If there be a Custome that after the Grass is cut and set into Grass-cocks the Tenth Cock be assigned to the Parson and that by the Custome it shall be lawful for him to make the same into Hay upon the Land and the Owner of the Land disturb him from making the same he may sue for that in the Ecclesiastical Court and no Prohibition shall be granted for that is incident to the Custome to come there to make the same into Hay Also the proper place to sue for a Legacy is the Ecclesiastical Court for that it is not any Debt but only due by the Will If A. do owe to B. five Marks and he Devise by his Will that whereas he doth owe five Marks to B. his Executor shall make it 10 l. The Suit for that 10 l. may be in the Ecclesiastical Court for that is not any Addition to the five Marks but a new Sum given in satisfaction of the five Marks and so no part of the 10 l. any Debt but only a Legacy Also if a man devise a Rent out of his Stock and House which he hath for years the Devisee may sue for that Rent in the Ecclesiastical Court for that it issues out of a Chattel and no remedy for it at the Common Law If a man possessed of a Lease for years Devise that his Executor shall out of the profits thereof pay 20 l. to each of his Daughters at their full Age the Executor may be sued in the Ecclesiastical Court to put in Sureties to pay the Legacies and no Prohibition shall be granted for that is to issue out of a Chattel 35. If there be a Question between two persons touching several Grants which of them shall be Register of the Bishop's Court that shall not be tried in the Bishop's Court but at Common Law for although the Subjectum circa quod be Spiritual yet the Office it self is Temporal Also if a man set forth his Tithes by severance of Nine parts from the Tenth and after carry away the Tenth part the Parson cannot sue for that in the Ecclesiastical Court for that by the severance of the Nine parts it did become a Chattel for which he might have his Action of Trespass 36. It is Reported That if a Suit be in the Ecclesiastical Court against a Woman for exercising the Trade of a Midwife without License of the Ordinary contrary to the Canons a Prohibition lies for that is not any Spiritual Function whereof they have cognizance And in this case Prohibition was granted to the Court of Audience 37. The Ecclesiastical Court may not try the Bounds of a Parish and therefore if Suit be there on that matter a Prohibition lies So if the Question there be whether such a Church be a Parochial Church or but a Chappel of Ease a Prohibition also lies In the Case between Elie vicar of Alderburne in the Country of Wilts and Cooke Prohibition was granted and thereupon Issue joyned whether several Parishes and tried by Verdict to be one Parish 38. Where a man sued for a Legacy in the Ecclesiastical Court against an Executor and he there pleaded that he had not Assets save only to pay the Debts and the said Court disallow'd of that plea a Prohibition was granted 39. If a man sues in the Ecclesiastical Court to have an Account for the profits of a Benefice a Prohibition lies for that it belongs to the Common Law But if the Suit be for the profits taken during the time of Sequestration no Prohibition lies 40. In Worts and Clyston's Case where the Plaintiff sued for Tithes in the Ecclesiastical Court by virtue of a Lease made by the Vicar of T. for three years The Defendant prayed to be discharged of Tithes by a former Lease The Plaintiff in the Ecclesiastical Court prayed a Prohibition to stay his own Suit there It was granted by the Court because they are not to meddle with the trial of Leases or real Contracts there although they have Jurisdiction of the Original cause viz. the Tithes 41. In Collier's Case upon the endowment of a Vicarage upon an Appropriation it was Ordained by the Bishop That the Vicar should pay yearly 20 l. to the Precentor in the Cathedral Church of S. to the use of the Vicars Chorals of the said Church It was held
remove the Tithe which circumstance of Time and the convenience thereof is triable by a Jury and if the Parson exceed the Time the Parishioner may have his Action against him as a Trespasser ab initio And some conceive that the Parishioner is not bound to give the Parson Notice when he doth set forth his Tithe By the Civil Law the Parishioner ought to give the Parson Notice when the Tithes are set forth but it hath been Adjudged that the Common Law doth not so oblige a man But a severance of Nine parts from the Tenth part there must be for such Severance is so necessary and in a kind so essential to Tithes that they are not due nor is it Tithe within the Statute of 2 Ed. 6. until such Severance be made Yet the Parson may Grant his Tithes growing upon the Land before Severance which ought to be made by the Owner of the Land for though the property of Tithes set out by the Owner of the Land belongs to the Parson yet it is otherwise if they be set out by a Stranger And in case the Land be not in any Parish then the King shall have the Tithe thereof by his Prerogative and by the Custome of England But where Lands in themselves Tithable are not manured or ploughed specially in prejudice to the Parson in such case he may notwithstanding Sue the Occupier thereof in the Spiritual Court for the Tithes of that Land But if the Parishioner duly sets forth and severs the Tithe in convenient time and after Dammage happen to him by the Parsons not taking the same away in like convenient time in that case the Parishioner may have his Action on the Case against the Parson 7. The Common Law of this Realm takes notice of Tithes by the word Dismes Decimae of the French Decimes signifying Tithe or the Tenth part of all the Annual Fruits either of the Earth or of Beasts or Mans labour and industry due unto God and consequently to him that is of the Lords Lot and hath his share by his special appointment It signifieth also the Tenths of all Spiritual Livings yearly given to the Prince called a perpetual Disme which anciently were paid to the Pope until Pope Vrban gave them to K. Richard the Second to aid him against Charles the French King and such others as upheld Clement the Seventh against him as aforesaid It signifieth likewise a Tribute levied of the Temporalty But here it is to be understood as Quota pars omnium bonorum licite quaesitorum Deo Divina Institutione debita which though according to the Canon Law is a Tenth of Annual and lawful Encrease commanded to be paid to the Sons of Levi for their maintenance in consideration of their Ministry yet at the Common Law it is an Ecclesiastical Inheritance collateral to the Estate of the Land and of its own nature due only to Ecclesiastical persons by the Ecclesiastical Laws The Practice whereof never met with any considerable interruption in any Age until Charles Martel's Sacrilegious Infeudations of Tithes about the year 650. which usher'd in such a President into the Christian World as could never to this day grow obsolete and out of use Notwithstanding from the beginning it was not so nor did any Lay-persons pretend to Tithes originally nor legally till the Statutes of Dissolutions of Abbies made them capable thereof whereby the Tithes appropriated to such Houses of Religion as were dissolved became a Lay-Fee and Suable by the Laity in the Kings Ecclesiastical Courts 8. Where in the Books of the Common Law it is Reported That before the Council of Lateran every man might give his Tithes to what Church he pleased and might have bestowed them upon what person he thought best there it is also asserted for reason That before that Council there were no Parishes nor Parish-Priests that could claim them But by a Canon made in that Council every man is since compellable to pay his Tithes to the Parson or Vicar of that Parish where the Tithes arise Here may arise a question Whether there were not Parishes long before any Council at Lateran For admitting that the Second Lateran Council was held in the year 1120 as S. Tho. Ridley computes it or that the general Council of Lateran was held in the year 1179 as Sir Simon Degge calculates it yet there seems of be a division into Parishes some Centuries of years before either of these For it is said That Cities and Countries were divided into several Parishes by an Ordinance of Pope Dionysius about the year 266 and from him derived into this and other Realms Also that Ecclesiastical persons first in this Kingdom made Divisions of Parishes as appears by our own Chronicles and that the first Practice thereof came from Honorius the 4th Archbishop of Canterbury after Augustine who died in the year 693 And such as have followed the course of Antiquity in this matter conceive that the original of Parishes had its President from the practice of some Ancient Roman Bishops it being as some would have it recorded in the Pontifical of Damasus but in Anastasius's Bibliothecar it is found That when Peter had appointed and ordained Priests c. and Cletus had reduced them to a certain number Pope Euarist assigned to each of them his Parish and as to the time when those Parishes were assign'd by Euarist it must be about the beginning of the second Century which was many Centuries before the C. of Lateran as also was the practice thereof here in England by Honorius as aforesaid the truth whereof is approved by Cambden But Cavendum c. saith Marsil in his Book De Red. Eccl. c. 12. heed must be taken as to the word Parish for it is equivocal having various acceptations as sometimes when nothing is named but a Parish the whole Diocess is understood which notion of the word often occurs in the Councils in which sense Barbatia spake a wide word for the Pope in his Tract de praest Card. when he said that in respect of his Holiness the whole world was but one Parish Sometimes a Parish is taken for such a part of the Diocess as was assign'd to some Priest arbitrarily sent and maintained by the Bishop to whom such a Parish paid all their dues and he to his Clergy about which time this custome was introduced that all Church-dues should be at the Bishops disposal to be divided into four portions whereof he should haveâ— part for himself another for his Clergy a 3d for the Poor and Strangers and the 4th to be reserved to the Parishioners for the repairing of Churches the collection of which dues was committed to the care of the Chorepise from which Quadripartite division probably came that custome whereby the Bishop of every Diocess might before the C. of Lateran make distribution of the Tithes within his Diocess where he thought convenient
and shall recover the Treble value of the Tithes in an Action of Debt for although the Treble value be not given to the Parson or other Proprietor of the Tithes by any express words of the Statute yet forasmuch as he is the party grieved and hath the Right of the Tithes in him the Treble value is given to him For wheresoever a Statute giveth a Forfeiture or penalty against any one who wrongfully detaineth or dispossesseth another of his Right or Interest in that case he that hath the wrong shall have the forfeiture or penalty and shall have his Action at the Common Law for the same or he may Sue in the Ecclesiastical Court for the same But in his Action at Common Law it seems he shall recover no Costs as hath been Adjudged But if the Parson or other Proprietor will sue in the Ecclesiastical Court for the subtraction of the Tithes he shall recover there but the double value of them because in that Court he shall recover the Tithes themselves which is equivalent to the Treble value at the Common Law In another Case where Debt upon the Statute of 2 Ed. 6. was brought for not setting forth of Tithes the Plaintiff shewed That Two parts of the Tithes did appertain to the Rectory and a Third part to the Vicarage and that he had a Lease for years of the Rectory and another Lease of the Vicarage And for not setting forth of the Tithes he demanded the Treble value upon Non Debet it being found for the Plaintiff it was urged in stay of Judgment that he ought to have brought several Actions being grounded upon several Leases as his Title is several But it was Resolved That the Action was well brought in regard he had both Titles in him and the Action is brought upon the wrong because he did not sett out the Tithes Again in Debt for not setting forth of Tithes upon the Statute of 2 Ed. 6. The Case was Corn was growing upon the Glebe-Lands of the Vicar which was discharged of Tithes being in his own use It happened that the Vicar died before the Tithe was severed and his Executors did cut and carry away the Corn and he that had the Parsonage appropriate brought the Action The Counsel of the Defendant prayed the Opinion of the Court whether he might plead Nihil debet But the Court refused to deliver their Opinion in it because it hanged in Suit before them In the Case of Mountford against Sidley it was said That where Tithes are sett out the Parson hath a liberty for a convenient time to come and carry them away And this convenience of Time is triable by a Jury if he exceed this he shall be subject to an Action and then by Judgment of Law he shall be taken to be a Trespasser ab initio Otherwise it shall be of a License in Fact given by the Parson himself And it was holden by the Court if the Corn had continued over long his Remedy had been by Action upon the Case And as a Parson ought to have convenient time to carry away his Tithes so likewise he ought to have for that end free ingress egress and regress to through and from the Land where the Tithes are wherein if he meet with any obstruction he ought to see how he Sues and lays his Action for in a Case where a Parson Libelled for Tithes in the Ecclesiastical Court and set forth That the Tithes were set forth and that the Defendant did hinder him and stop him from carrying them away But because he did not Sue there upon the Statute of 2 Ed. 6. for he did not mention the Double value as he ought and it was Agreed by all the Justices he ought to have done nor mention the Statute as he ought also to have done a Prohibition in that Case was awarded The Grant of a Tithe for Life to begin at a day to come is not good Yelvert 131. If a man will lett a Lease of his Tithes the Lease must be by Deed and not by word only therefore if a Parson doth Demise his Rectory for years the Tithes will pass inclusive although the Lease be by word only but if the Parson Lease his Tithes alone they will not pass unless the same be by Deed or Writing Yet the Parson may Demise his Tithes to the Owner of the Land for a year by word only as hath been agreed by all the Justices but to a Stranger he cannot Demise them otherwise than by Deed And although Tithes will as aforesaid pass by Contract to the Owner of the Soil yet may the Parson sue the Owner for Tithes in kind in the Spiritual Court and as it hath been holden the Owner by reason of the Contract shall not have a Prohibition In which case the Ower of the Soil may sue the Parson upon the Contract in the Temporal Court and recover as much in Dammages but then in his Pleading he must not declare of a Verbal Contract but must set forth the same to have been made in Writing and so it hath been Adjudged And in the Lord Shandois Case it was holden by the Court That a Suggestion of an Agreement between him and the Parson in consideration of a certain Sum to be yearly paid to the Parson during their Joynt-Lives and his continuing Parson that his Messuage and Lands in the Parish of D. and the Tenants thereof should be discharged from the payment of Tithes thereof shewing that the said yearly Sum was paid accordingly and that notwithstanding the Defendant sued the Plaintiff being his Farmer for Tithes In this Case it was held That this was not a sufficient Surmize to maintain a Prohibition For an Agreement to be discharged from Tithes may be a year by word but to have such an Agreement for life or years cannot be without Deed Likewise in an Ejectione Firme brought of a Lease of Tithes the Plaintiff did not shew that the Lease was by Deed and because Tithes cannot pass without Deed after a Verdict found for the Plaintiff It was Ruled to be ill and Adjudged for the Defendant To conclude In the 19 El. B. R. it was debated whether Tithes were Jure divino or by the Constitution of men only The Judg. were all it seems of Opinion That they were due as well by the Constitution of Kings as by the Law of God And therewith doth Dr. Stu. 166. if the Qu. be de Quota parte For there it is held that the 60 part is due only by mans Law And the Opinion of Gerson the Divine is cited in his Treatise Entituled Regulae Morales where it is said Solutio Decimarum Sacerdotibus est jure Divino quatenus inde sustentur sed quoad hanc quam illam partem assignare aut in alios reditus commutare Positivi juris est And elsewhere Non vocatur portio Curatis Decima pars imo est
was a common Pimp and notorious which he would justifie After Verdict for the Plaintiff Littleton the King's Sollicitor moved in Arrest of Judgment that these words are not Actionable for it is a meer Spiritual Slander as Whore or Heretick and punishable in the Spiritual Court and not at the Common Law and he said that divers times Suits have been in the Spiritual Court for such words and Prohibitions prayed and never granted vid. 27. H. 8. 14. But to say that he keeps a Bawdy house is presentable in the Leet and punishable at the Common Law Ward è Contra because it is spoken of one of an honourable profession viz. a Souldier and trenches on his reputation to be taxed with such a base Offence and he said that such offences have been divers times punished in London by corporal punishment but it was answered that was by Custom and there the calling one Where is Actionable Jones Justice held that the Action lay not and all the Justices agreed that the exposition and averment that Pimp is known to be a Name for a common Bawd is good Croke and Berkley agreed that the words are very slanderous and more than if he had call'd him Adulterer or Whoremonger c. aud may be indicted and punished for it corporally as tending to the breach of the Peace and rule was given that Judgement should be entred c. But was afterwards stayed 17. Suit being in the Ecclesiastical Court for calling a mans Wife Welch Jade and Welch Rogue Sentence being there in the Arches the Defendant appealed to the Court of Audience and in the Appeal mentioned the former words and in the libel was interlined and a Welch Thief and hereupon a Prohibition was prayed and granted unless cause were shewn by such a day to the contrary For it was held clearly that for the word Welch Thief Action lies at the Common Law and they ought not to sue in the Spiritual Court And for the other words it was conceived upon the first Motion they ought not to sue in the Spiritual Court for they be words only of Heat and no Slander But it was afterwards moved and shewn that the said words A Welch Thief were not in the first Libel nor in the Appeal at the time of the Appeal but were interlined by a false Hand without the privity of the Plaintiff in the Ecclesiastical Court and that upon Examination in that Court it was found to be falsly inserted and ordered to be expunged And that the words Welch Jade were shewn in the Libel to be expounded and so known to be a Welch Whore which being a Spiritual Cause and examinable there it was therefore prayed that no Prohibition should be granted and if it were granted that a Consultation should be awarded And of this Opinion was all the Court that the words and a Welch Thief being unduly interlined and by Authority of the Ecclesiastical Court expunged and in that Court Jade is known and so expounded for a Whore our Law gives Credence to them therein and especially being after two Sentences in the Spiritual Court This Court will not meddle therewith Wherefore Consultation was granted if any Prohibition was issued forth quia improvide And Rule given that if a Prohibition was not passed that none should be granted 18. It was moved for a Prohibition by Harris Serjeant to the Court of Audience because that the Plaintiff was sued there for saying to one Thou art a common Whore and a base Quean and Harris said that a Prohibition had been granted in this Court for saying to one that she was a pimperly Quean And it was the Case of Man against Hucksler And Finch said though the words are not Actionable in our Law yet they are punishable in the Spiritual Court For the word Quean in their Law implies as much as Whore But Hobart said that this word Quean is not a word of any certain Sense and is to all intents and purposes an Individuum Vagum and so incertain 19. In an Action upon the Case that whereas he is Parson of D. and a Preacher the Defendant Slandered him in haec verba Parrett is a lewd Adulterer and hath had two Children by the Wife of I. S. I will cause him to be deprived for it By the Court the Action doth not lie For the Slander is to be punished in the Ecclesiastical Court And so awarded Quod Quer. nil cap. per. bill 20. D. had sued T. in the Ecclesiastical Court for this viz. That whereas she was of good fame and kept a Victualling House in good Order that the said T. had published that D. kept an house of Bawdry T. now brought a Prohibition and by the Court well for D. might have an Action for that at the Common Law especially where she kept a Victualling house as her Trade Note 27. H. 8. 14. And by the Justices that the keeping of a Brothel-house is enquirable at the Leet and so a temporal Offence And so was the opinion of the Court Tr. 7. Car. B. R. Mrs. Holland's Case 21. W. sued L in the Ecclesiastical Court for a Defamation and had Sentence L. appeals and depending the Appeal comes a Pardon which relates to the Offence and pardons it then L. deferrs his Appeal and for that W. had costs taxed him And now L. prayed a Prohibition because he deferr'd his Appeal because of the Pardon which had taken away the Offence And by the Court in that Case after the pardon the inferiour Court cannot tax Costs but it was urged that the superiour Courts might tax Costs upon the desertion of the Appeal which is an Offence after the Pardon But it was answered on the other side that it was in vain to prosecute the Appeal when the Offence it self is pardoned The words were Thou art a Pander to Sr. Hen. Vaughan And there was much debate if they were actionable at Common Law yet it was agreed that a Suit may be brought for them in the Spiritual Court as for calling one Whore Bawd or Drunkard But otherwise by Jones if he had said That he was Drunk for then a Prohibition lies And it was ruled in 6. Jac. B. R. in the Case of Cradock against Thomas a Prohibition was granted in a Suit for calling one Whoreson And in Weeks Case a Prohibition in a Suit for calling one Knave 22. E. and M. being reputed Church-wardens but they never took any Oath as the Office requires present a Feme Covert upon a common report for Adultery c. And the Husband and Wife libel against them in the Ecclesiastical Court for that Defamation And when Sentence was ready to be given for them the Church-wardens appeal to the Arches where the presentment was proved but by one Witness they sentenced the Baron and Feme But now Ward Serjeant moved for a Prohibition but it was denied by the Court for they were Plaintiffs first And also it is a Cause which this
Court had not any Cognizance of 23. Note upon evidence to the Jury Resolved by the Court that an Action upon the Case for words lies against an Infant of Seventeen years of age For malitia supplet aetatem And it is said at the Common Law that if a Man Libel in the Ecclesiastical Court against one for saying certain words of him which he will maintain in an Action upon the Case at Common Law a Prohibition lies 24. If a Man Libels in the Ecclesiastical Court against one for saying that he is a Witch or the Son of a Witch although no Action lies for that at the Common Law yet no Prohibition shall be granted for peradventure he may have some Spiritual prejudice thereby if he should be the Son of a Witch as that he cannot be a Priest or the like for it seems all the force of the words consists in the last words they being spoken in the disjunctive If a Parson of a Church call A. B. Drunkard upon which A. B. answers thou lyest if the Parson sue A. B. in the Ecclesiastical Court for giving him the lye a Prohibition lies for that the Cause for which he gave him the lye is not Spiritual but depending on a Temporal thing precedent But if a Man call a Minister Knave he may be sued for that in the Ecclesiastical Court and no Prohibition lies If one Man says of another that he will not hear Sermons made by those who have been made Ministers by Bishops he may be sued for that in the Ecclesiastical Court and no Prohibition shall be granted If a Man says of another that he keeps a Bawdy house and is sued for it in the Ecclesiastical Court although he might have an Action at Common Law yet the Ecclesiastical Law hath a concurrent Jurisdiction in this and the words are mixt for which reason no Prohibition lies And if one says of another that he is a Pander he may be sued in the Ecclesiastical Court for that the signification of that word is well known and sounds to a Spiritual Defamation Or if a Man says to another Thou art a Cuckoldly Knave and for that he and his Wife sue him in the Ecclesiastical Court for a Defamation no Prohibition lies for that these words amount to a Spiritual Defamation viz. that his Wife was incontinent in this Case a Prohibition was denied Husband and Wife were Divorced for Adultery à mensa thoro mutua cohabitatione and as one of the Counsel said de omnibus Matrimonialibus obsequiis but the Counsel of the other party denied that and after the Wife sued in the Ecclesiastical Court a Stranger for Defamation and Sentence there given for her and penance enjoyn'd to the party Defendant and costs of Suit assessed for the Plaintiff and afterwards the Defendant appeals and after the Husband of the Wife releases all Actions and that Suit and all appertaining thereunto and the Defendant pleaded that Release and they remitted back the Suit to the inferiour Court again and now Coventry Recorder of London prayed a Prohibition for that notwithstanding the Divorce they continued Husband and Wife and therefore the Release of the Husband should barr the Wife from having Execution of the Sentence and of the Costs 44 El. In this Court between Steevens Administrator of one Steevens and Totte the Case was That after a Divorce for Adultery of the Husband à Mensa Thoro the Woman sued in the Ecclesiastical Court for a Legacy devised to her by the Testator and the Defendant pleaded a Release thereof from the Husband and thereupon a Prohibition was granted and he shew'd that president in Court but the President did not comprehend the Divorce But Doderidge said he well remembred when that Case was argued and the parlance then was about the Divorce Wentworth it seems that no Prohibition shall be granted Hill 7. Jac. in this Court A Suit was commenced in the Ecclesiastical Court by two Church-wardens and the Defendant there pleaded the Release of one of them and thereupon a Prohibition was here granted and after a consultation was granted for that they shall try that having cognizance of the Principal and in this Case the Release is after the appeal and therefore it may not be pleaded upon the appeal for the Judges in the appeal have no power but to examine the former Sentence and not any collateral matter Coventrie I agree the Case of the Church-wardens for that the Release of one is not any Barr in Law for 38. Elâ—z it was here resolved between Methon and Winns that a gift by the Church-wardens without the Assent of the Sidemen or Vestry is void but it is otherwise here for here the Release of the Husband is sufficient to discharge the Execution of that Sentence the which is all that we demand 10. lâ— 3. such Divorce is not any Barr of Dower The Court seemed to incline that no Prohibition should be granted for that the Wife in such Case may be sued alone without the Husband by the Ecclesiastical Law and this is matter meerly Spiritual viz. Defamation and therefore we have nothing to do therewith and the Release of the Husband shall not discharge the Suit of the Wife which is only to restore her to her Credit and Reputation which was impeached by the other and the Costs of Suit is not for any Dammage but meerly for the Charge of the Suit and therefore the Suit being not discharged the Costs shall remain also and this Case is not like the fore-cited Case of Stephens for the thing for which that Suit was was originally a Legacy due to Husband and Wife and therefore there the Release of the Husband was a good discharge but here was no duty in the Husband originally Ergo c. Curia advisare vult In Palmer and Thorps Case it was resolved that Defamation in the Ecclesiastical Court ought to have three Incidents 1 That the matter be meerly Spiritual and determinable in the Ecclesiastical Court as for calling one Heretick Schismatick Advowterer Fornicator 2 It ought to concern matter meerly Spiritual only for if it concern any thing determinable at common Law the Ecclesiastical Judge shall not have Cognizance of it See for this 22. E. 4. 20 the Abbot of St. Albons Case 3 Though the thing be meerly Spiritual yet he which is defamed cannot sue there for amends or dammages but the Suit there ought to be for punishment of the offender Pro salute animae For this see Articulis cleri Circumspecte agatis and Fitz. 51 52 53. but yet the Plainshall recover Costs there and there if the Defendant to redeem his Penance agree to pay a certain sum the Party may sue for this there and no Prohibition lies in that Case In a Case of Prohibition between M. and M. in the Ecclesiastical Court the Case was a Suit was there for Defamation by the Wife of the
hath ever something of Spiritualty annex'd to it 5 That in its nature it be perpetual 6 That all manner of Contracts and Bargains concerning it be utterly rejected Panorm Consil 47. Anchor de Regul prim de reg jur in 6. q. Decius in Rub. de Rescript 16. Whatever is enjoyed as a Benefice is had and obtained either by way of Title or Canonical Institution Lindw de cohabit Cle. Mulier c. ut Clericalis verb. Beneficiati Ecclesiastical Benefices being commonly distinguish'd into Presentatives and Donatives for a Parochial Church may be Donative and exempt from all Ordinaries Jurisdiction For if the King doth found a Church or Chappel he may exempt the same from the Ordinaries Jurisdiction in which case the Lord Chancellor and Lord Keeper shall Visit the same 20 E. 3. Excommeng 9. 21 E. 3. 60. Parsons Law cap. 28. Or if the King by his Letters Patents doth License a Common person to Found a Church or Chappel exempt from the Ordinaries Jurisdiction the same shall be Visited by the Founder and not by the Ordinary 6 H. 7. 4. per Keble 8 Ass 29. F. N. B. 42. acc And if such Clerk Donative be disturbed in his Incumbency the Patron or Founder shall have a Quare impedit Praesentare and declare upon the Special matter But if a Patron of a Church Donative doth once present unto the Ordinary and his Clerk be Admitted and Instituted it is now become Presentable and it shall never be Donative after and then the Ordinary shall Visit the same a Proxie shall be paid and Lapse shall incur to the Ordinary as in all other Benefices presentable but so long as it remains Donative it is without the Jurisdiction of the Ordinary For a Donative is a Benefice meerly given and collated by the Patron to a man without either Presentation to or Institution by the Ordinary or Induction by his Order All Bishopricks were anciently Donative by the King and it is said that there are certain Chauntries which may be given by Letters Patents The Original Donatives in England is supposed to be from what Mr. Guinn mentions in the Preface of his Readings viz. That as the King might anciently Found a Free Chappel and exempt it from the Diocesan's Jurisdiction So he might also by his Letters Patents License a Common person to Found such a Chappel and to Ordain that it shall be Donative and not Presentable and that the Chaplain shall be deprivable by the Founder and his Heirs and not by the Bishop Whether such Donatives are properly Benefices Ecclesiastical may well admit of an Enquiry for where Petr. Gregorius speaks of Chappels Founded by Lay-men not approved by the Diocesan nor by him as it were Spiritualiz'd he there says plainly that they are not accounted Benefices nor can they be conferr'd by the Bishop but the Founders and their Heirs may give such Chappels if they so please without the Bishop Petr. Gregor de Benefic cap. 11. nu 10. Guid. Pap. Decis 187. And Lindwood makes a very prolix question on the same reason whether St. Martins Le Grand Lond. be Ecclesiasticum Beneficium or not Arguing it pro and con but concludes in the Affirmative Lindw de Cohab. Cler. Mul. cap. ut Clericalis 17. The Prior of D. was seized of the Advowson of the Church of N. appropriated to his Priory and also of the Vicarage of N. endowed with small Tithes The Appropriation and Endowment were both in the time of King John and continued till the time of Hen. 6. when the Pope granted by his Bulls That the Prior should appoint one of his Monks to officiate the Cure who should be removed ad nutum Prioris The point was Whether the Vicarage was dissolved Resolved 1 That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope could not make any Ordinance against that Statute nor Dispence by his Bulls with the Law though they tend in Ordine ad Spiritualia 2 There were no words that amount to a Dissolution but the words only are That the Vicar should be ad nutum Prioris 3 The Parsonage and Vicarage are two distinct Benefices and both have Curam animarum the Parson habitualiter and the Vicar actualiter and although the Vicarage be Spiritual yet the Corporation is Temporal which the Pope cannot dissolve 4 That in this case the Vicarage was not Dissolved vid. 12 Jac. in the Exchequer Parry and Bank's Case accordingly there vouched 18. In the Canon Law there are two sorts of Vicarages viz. Vicaria Temporalis and Vicaria Perpetua The Vicaria Temporalis is compared to the Commenda Temporalis for that such Temporal Vicar non habet Titulum sed servit alieno nomine proprie Curam non habet otherwise it is de Vicaris perpetua quae est incompatibilis cum alio Beneficio habet Curam animarum talis Vicarius habet Titulum Canonicum And a Quare Impedit lies against such perpetual Vicarage F. N. B. 32. h. Regist 31. a. And such a Vicar shall have a Juris Vtrum of Lands annext or given to him in perpetuity by the Statute of 14 Ed. 3. cap. 17. vid. 40 Ed. 3. 28. b. where Finchden said That although it had been held that a Vicar should not have Action of his Possessions against any person yet that now the Law is changed in that point and good reason when he is endowed to him and his Successors in perpetuity CHAP. XIX Of Advowsons 1. Advowson what and why so called 2. Advowsons twofold 3. The great Antiquity of Advowsons the Original thereof 4. How it was in this Kingdom under the Saxons 5. The word Advowson applicable to other Ecclesiastical Foundations as well as Churches what the Famous Lindwood was 6. Advowsons are Temporal not Spiritual Inheritances 7. Reasons in Law proving it to be a Temporal Inheritance 8. The difference between Advowsons in Gross and Appendant 9. How Advowson Appendant may remain in the King as in Gross 10. By what words in a Grant an Advowson may pass or not 11. How an Advowson may be recontinued to the Rightful Patron where he was ousted by Vsurpation 12. A Case in Law touching three Avoydances of a Church granted to one man 13. A Question in Law whether upon such matter of Fact an Advowson remains Appendant or not 14. Advowsons are devisable by Will as well as grantable by Deed what Actions may run in prejudice to the Advowson or not 15. Whether an Advowson may be Assets and under what words it may pass or not 16. A Case in Law touching the Advowson of a Vicarage 17. In what case the Writ of Right of Advowson lies or not 18. In what case the Crown shall be put to that Writ or not in case of Vsurpation by a Common person 19. A point in Law whether the King or his Grantee shall have the Presentation where the King having a
the different conditions of the persons of whom they were begotten As when they were begotten by persons of a single and unmarried Estate and of such as were kept as Concubines the Civil Law called them Filii Naturales if begotten of single Women not design'd for Concubines for satisfaction of present Lust then they were called Spurii if begotten of such as the Law styles Scorta or common Harlots by publick profession than they were called Manzeres if begotten of Married Women then they were called Nothi if begotten between Ascendents and Descendents or between Collaterals contrary to the Divine prohibition then they are called Incestuosi 6. Bastardy so stains the Blood that the Bastard can challenge neither Honour nor Arms and so disables him that he cannot pretend to any succession to inheritance The Temporal and the Ecclesiastical Laws with us do not differ as to matter of Bastardy but something as to the prosecution thereof The Ecclesiastical Law brings it two ways to Judgment Incidently and Principally the Common Law makes two sorts thereof General and Special Incidently at the Ecclesiastical Law when it is pleaded in Bar to a claim of something in right of Nativity Principally when by reason of some slanderous and reproachful speeches it is brought before the Court as the principal matter in Judgment to be alledged and proved that thereupon Sentence may be pronounced accordingly by the Ecclesiastical Judge Ad Curiam enim Regiam non pertinet agnoscere de Bastardia General Bastardy at Common Law is so called because it is in gross objected in Barr against a Man to disappoint him in the Principal matter of his Suit Which because it is of Ecclesiastical Cognizance is sent by the Kings Writ to the Ordinary to enquire whether the Party charged with Bastardy were born in or out of Lawful Matrimony And as the Ordinary finds the truth of the matter upon due examination so he pronounceth accordingly in his Consistory whereof he returns Certificate to the Temporal Courts Special Bastardy at the Common Law seems to be only that where the Matrimony is confest but the Priority or Posteriority of the Nativity of him whose Birth is in question is controverted General Bastardy ought to be Tryed by the Bishop and not by the Country But Bastardy in this sense cannot be tryed by the Ordinary otherwise than by vertue of the Kings Writ on some Suit depending in the Temporal Court When Issue is joyn'd on Bastardy before it be awarded to the Ordinary to Try it Proclamation thereof is made in the same Court and after Issue it is certified into Chancery where Proclamation is made once a Month for three Months and then the Lord Chancellour certifies it to the Court where the Plea is depending and after it is Proclaimed again in the same Court that all such whom the said Plea concerns may appear and make their Allegations before the Ordinary whose Certificate of Bastardy is nothing to the purpose unless it come in by Process at the Suit of the Parties And this Bastardy ought to be certified under the Seal of the Ordinary for it is not sufficient to certifie it under the Seal of the Commissary And although the Defendant be certified a Bastard by the Ordinary yet the Certificate shall lose its force if the Plaintiff be afterwards Nonsuit for then the Certificate is not of Record In the Case of Elborough against Allen it was said by Crook that for calling one Bastard generally there is not any sufficient Ground of Action at the Common Law but if there be any special Loss thereby it shall be a good ground of Action at the Comon Law as if a Man be upon Marriage or in treaty for the sale of Land whereby his Title is disparaged Doderidge Justice said That the word Bastard is generally of another Jurisdiction and belongs to the Ecclesiastical Court to determine what shall be Bastardy and their Judgement is given for the damage which the party had in his birth and for that their Entry is quia laesis est natalitiis And in this Case the Chief Justice said that generally to say J. S. is a Bastard J. S. hath not cause of Action given him thereby but if there be a Temporal cause averr'd the Common Law may proceed therein for though Originally Bastardy be of the Ecclesiastical Jurisdiction not Triable at the Common Law and therefore as in its general nature it is of the Spiritual Jurisdiction so being by its generality no ground of Action at the Common Law yet if one be to sue for a Childs part or sue for the Administration of his Fathers Goods and this be set forth in the Declaration it will maintain an Action at Common Law Doderidge Justice said That to say generally that one called him Bastard is not ground of Action if he doth not shew some special Loss thereby as when a Woman brings her Action and says that she was in Treaty of Marriage and that the Defendant called her Whore this will not maintain an Action unless she say withall that by reason of these words she lost her preferment but Chamberlain Justice said to call a Woman Whore is at this day a sufficient cause of Action for her for that it is punishable by the Statute he also further said that if a Man Libel in the Ecclesiastical Court that he hath Lands by descent and that J. S. call'd him Bastard they may not proceed there or if they do a Prohibition lies He further said that for calling a Man Bastard generally without special Loss alledged Action shall be maintained and Cited a Case in 6 Eliz. Dyer Where a Man recovered red great Dammages for that the Defendant had said that his Father was a Bastard And cited also one Nelson and Stokes Case in 5 Jac. where the Plaintiff did not alledge any special cause of Action and yet recovered 7. By the Civil Law such as were born in the beginning of the eleventh Month next after the decease of their Mothers Husband were to be accounted legitimate but such as were born in the end thereof were to be accounted Bastards Auth. Col. 4. yet the Gloss there relates a matter of Fact contrary to this Law and gives us an instance of a Widow in Paris who was delivered of a Child the fourteenth Month after her Husbands death yet the good repute of this Womans continency prevailed so much against the Letter of the Law that the Court Judg'd the causes of Child-birth to be sometimes extraordinary the Woman to be chast and the Child Legitimate Hoc tamen in exemplum trahi facile non oportet as the Gloss there concludes 8. By the Common Law if a Child be born but an hour after the solemnization of Marriage it shall be the Husbands though it were begotten by another Man who was not the Mothers Husband and may be the Heir of him who Married the Mother but a Day
account 10 Months and 40 Weeks or all one but by accident an Infant may be born after the 40 Weeks or before Si partus nascatur post mortem Patru qui dicitur Posthumus per tantum tempus quod non sit verisimile quod possit esse defuncti filius hoc probato talis dici poterit Bastardus 13. It is agreed on all hands that Bawardy is an Ecclesiastica Cause and of Ecclesiastical Cognizance and therefore if Bastardy be pleaded in disability of a plaintiff the saâ—◠〈◊〉 be tried by the Certificate of the Bishop whether it be in Real Action relating to Inheritance or Personal relating to 〈◊〉 otherwise where Action on the Case will lie But if it be pleaded that the Plaintiff was born at such a place before the Marriage solemnized and so he is a Bastard This the Common Law cals a Special Bastardy and shall be tried by Jury at the Common Law where the Birth is alledged So in the Duke of Suffolk's Case of Partition where Special Bastardy was pleaded and Issue thereupon taken the Trial was awarded to be by a Jury of London And where in an Action upon the Case brought for calling one Bastard the Defendant justified that he was a Bastard it was awarded that it should be tried by the Countrey and not by the Ordinary Which seems somthing Paradoxical that if Bastardy be pleaded in Disability of a Plaintiff then it shall be tried by the Bishops Certificate but if it be pleaded that the Plaintiff was born in such a place before the Marriage then by a Jury The former whereof is said to be a general Bastardy the other a special Bastardy whereas in truth they both seem to differ only in this that the former seems to be a general relating to the Plaintiffs condition in respect of his Disability the other seems to be a special relating to the circumstances of Place and Time of his Nativity but both referring to his Bastardy 14. If a man that is ordered by two Justices of the Peace to keep a Bastard-Child he being according to the said Order the reputed Father shall appeal from the said Order to the next Quarter Sessions according to the Stat. of 18. Eliz. and being there discharged and the said Order repealed shall yet afterwards at another Quarter-Sessions of the Peace upon re-examination of the matter be ordered according to the first Order in that case it hath been held by the Court that the second Sessions had no power to alter the Discharge made by the former Sessions v And in another Case it hath been resolved that before the Statute of 3. Car. c. 4. the Justices at the Sessions had no Authority to intermeddle in the Case of Bastardy till the two next Justices according to the Stat. of 18. Eliz. had made an order therein As also that by the Stat. 3. Car. the Justices of their several Limits are to make an Order in Case of Bastardy 15. C. commenced an Action in the Spiritual Court against W. for saying that he had a Bastard W. the Defendant alledged in the said Court that the Plaintiff was adjudged the reputed Father of a Bastard by two Justices of the Peace according to the Statute whereupon he spake the words The Spiritual Court accepted of his Confession but would not allow of his Justification whereupon he prayed a prohibition and it was granted It is not denied but that if the Spiritual Court try a thing that is of Temporal Cognizance a Prohibition may lie although all the Cause were originally Spiritual as was resolved in Kenns Case in which Case it was likewise resolved that where the Cause is Spiritual there the Spiritual Court hath Jurisdiction and in the Case between Banting and Lepingwell it was resolved that the Judges of the Common Law ought that is the word in the Report to give Faith Credit to the Proceedings of the Spiritual Court albeit it be against the Reason of their Law 16. If a man having a wife take another wife and hath Issue by her living the former wife such Issue is a Bastard for the second Marriage is void If a man marry one within the Degrees prohibited the Issue between them is not by the Common Law a Bastard until there be a Divorce for by that Law the Marriage is not till then void So it is although the Brother Marry the Sister If a Man hath Issue by A. and after Marries her yet the Issue is a Bastard at the Common Law An Ideot may consent to Marriage by the Common Law though he were an Ideot from his birth and his Issue by that Law is Legitimate If the Husband be castrated so that it is apparent that he cannot by any possibility beget any Issue and his Wife have Issue divers years after it shall be a Bastard although it be begotten under Marriage for that it is apparent that it could not be Legitimate 17. By the Law of the Land a Man cannot be a Bastard who is born after the Espousals unless there be some special matter in the case If a Woman be big with Child by A. and after A. Marry her and the Issue is born within the Espousals in this Case by the Common Law the Issue is a Mulier and not a Bastard So if a Woman be big with Child by one Man and after-wards another Marries her and after the Issue is born such Issue is a Mulier for that he is born under Espousals and cannot be held the Issue of him by whom she was with Child because that cannot be certainly known and so it is although the Issue were born within three days after Marriage 18. If a Woman Covert hath Issue in Avoutrie yet if the Husband be able to get a Child and be infra quatuor maria the Issue is no Bastard If a Woman Elope and live in Avoutrie with another Man during which Issue is born in Avoutrie yet it is a Mulier by the Common Law But then the Husband must be infra quatuor maria so as that by intendment he might come to his Wife otherwise the Issue is a Bastard But if a Woman hath Issue her Husband being beyond sea for 7 years together before the Issue was born such Issue is a Bastard at the Common Law If a Feme Covert hath Issue her Husband being beyond Sea for 6 years before the Issue is born it is a Bastard at the Common Law If a Woman hath Issue her Husband being within 14 years of age the Issue is a Bastard at the common Law quaere 19. If A. hath Issue by B. and after they intermarry yet the Issue is a Bastard by the Common Law but it is a Mulier by the Civil Law If the Parents be Divorced causa Consanguinitatis they being ignorant thereof at their Marriage the Issues they
not power to meddle with them 2 It was Resolved That a Reservation by a Lessee for life who Leases for years to A. is not sufficient to bind him in Reversion to pay Tithes according to that rate 3 That a Rent for half a year and afterwards for another half year is a yearly Rent within the meaning of the Decree And note as the same was last Lett is not intended last before the Decree but before the Demand of the Tithes 71. It was found upon a Special Verdict That the Parson of the Parish makes A. Collector of Tithes and that A. had Licensed a Parishioner to carry away his Corn without setting â—orth of Tithes By the Court clearly that License is void vid. 5 E. 3. 63. Plow 104. That a Collector of Rents cannot make an Acquittance and discharge them And a Consultation was awarded 72. Baron and Feme Lessees of a Parsonage c. The Parishioner sets forth the Tithes fraudulently and presently takes them away again as it appears upon the Evidence And the Husband only brought the Action upon 2 Ed. 6. for the treble Dammages And it was Resolved That Debt lies for treble Dammages upon such a fraudulent setting forth of Tithes although that the clause of Treble Dammages speaks nothing of Fraud But 2 it was Resolved That the Husband and Wife ought to have joyned in the Action because it is not a thing in possession And if the Husband dies the Wife shall have the Dammages and not the Executor of the Husband 73. A Prohibition was prayed upon a Surmize That the Tithes for which the Suit was belonged to the Vicar and not to the Parson By the Court That a Consultation shall be granted for the Right of Tithes is confessed And whether they belong to the Parson or the Vicar that is meerly Spiritual And that so it was Ruled in one Bushel's Case the Parson of Pancras and in one Milbray's Case it was Adjudged accordingly 74. By the Court That a Prohibition shall not be granted upon a bare Surmize that he is sued for Tithes by the Parson of D. of Lands in the parish of S. unless it appears in the Pleading in the Spiritual Court For they there shall not be Judges of the bounds of the Parish Vid. 5 H. 5. 10. 22 E. 4. 24. 75. A Prohibition was pray'd upon a Suit in the Ecclesiastical Court for Tithes in kind of a Park now converted into Tillage upon a Surmize de Modo Decimandi to pay a Buck and a Doe for all Tithes And allowed by the Court and agrâ—ed 1 Although they are Ferae naturae yet they may be given for Tithes So to pay Pheasants c. 2 Although they are not Tithable of themselves yet they may be given for Modus Decimandi As a great Tree may be given for Tithe of Trees tithable 3 That that is a discharge of the very Soil and a Park is not but a Liberty and the Owner may furnish it with Game when he please But after a Consultation was granted because the Surmize was not proved within the Six months So Adjudged Hill 6. Jac. C. B. The Vicar of Clare in Suffolk who sued for Hops And there also a Prohibition was granted upon such a Surmize But after a Consultation was granted in that Case For the Modus Decimandi was alledged for Discharge of Tithes of Hay and Herbage and not of all Tithes where the Libel was for Tithes of Hops And Coke Chief Justice vouched one Shibden's Case That such a Modus Decimandi generally for the Park is not good if it be disparked But it shall be particularly for all Acres contained in the Park 76. Upon a Surmize to have Prohibition after Sentence at the Ecclesiastical Court Two Judgments were vouch'd upon the Statute 2 E. 6. for not setting forth of Tithes And 43 Eliz. B. R. a Parishioner privately sets forth his Tithes and takes witness of it and immediately after he carries them away that is not a setting forth within the Statute For the words are truly justly and without fraud or covin Vid. 10 H. 4. 2. 2. 44 Eliz. B. R. Bâ—kâ—r's Case A Parishioner sells his Grain upon his Land and after by the command of the Vendee he takes his Corn being severed without setting forth of the Tithes That the Parson may well have an Action against him upon the Statute and shall not be compelled to Sue the Vendee who it may be was not known to him And it is not Traversable if the Tithes were set forth according to 47 Eliz. It was Resolved in Trin. 7 Jac. B. R. in Brickendine's Case against Denwood 77. If a Vicar hath used by Prescription time out of mind c. to have all the Tithes within the Parish except Corn which the Parson appropriate used to have viz. of Hay and also of Hops from the time it came into England which was in the time of H. 8. and of Woâ—d which is a Dying plant and moreover Rape-seed is sown there in the Parish where never any such Seed was sown before nor in England till of late times yet the Vicar shall have the Tithes of that Rape-seed and not the Parson appropriate for that it is within the Prescription although it be a new thing and therefore could not be prescribed singly and for that the Parson is excluded of all except the Corn 78. If Doubt arise de Decimis Garbarum as what shall be intended by Garba it is said that Garba at the Common Law signifies at this day a Sheaf of Corn and the Civilians say Garba signifies such a thing as is bound together in one bundle 79. In the Case between Reynolls and Green it was Adjudged by the Court That Wood in its own nature is Great Tithes notwithstanding if a Vicar be endowed de Minutis Decimis and by virtue of the said Endowment had of a long time used to have Tithe of Wood not exceeding the yearly value of 6 s. 8 d. the usage of Wood shall pass by the words de Minutis Decimis in that case by reason of the small value thereof 80. Where a Parson had Two parts of the Tithes and the Vicar of the same place had the Third and they by several Leases had demised the Tithes to one In this Case the whole Court except Justice Fenner held That although the Parson and Vicar could not joyn in this Case in a Suit of Tithes because they claim them severally by divided rights yet when both their Tithes are conjoyned in one person viz. the Lessee then the interest of their Title is conjoyned also in one who made but one Action for the whole Tithes in that case yet it was agreed by all the Judges that the Plaintiff-Lessee should recover his Tithes in dammages and shall not demand them again in any Suit after a Recovery in this Action 81. It was Agreed by the
whole Court of Kings Bench Mich. 5 Jac. and hath many times been Ruled That if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by Word it is not good by the opinion of Flemming Chief Justice because iâ— amounts to a Lease and he held strongly That Tithes cannot be Leased for years without a Deed. 82. Upon the Statute of 2 Ed. 6. cap. 13. â—or Setting out of Tithes in a Prohibition to stay proceedings by a Parson in a Suit in the Ecclesiastical Court against one of his Parish for hindering of him in his way in the Carriage of his Tithes The whole Court agreed in this That if a Parson hath his usual way stop'd that so he cannot come to take away his Tithes being set out for him he may well sue for this in the Ecclesiastical Court and there have his remedy But if the Question be whether the Parson be of right to have a way viz. one way or another this is Triable by the Common Law and not in the Ecclesiastical Court but if the Parson have a certain Way granted to him and set out by the Common Law if he be at any time disturbed or hindered by any of his Parishioners or by any other in the use of this his Way he may then in such case well sue in the Ecclesiastical Court for his remedy And the words of the Statute of 2 Ed. 6. cap. 13. are That if any Parson be disturbed stopped or hindered in the carrying away of his Tithes so that the Tithe comes to be lost hurt or impaired in this case he may sue in the Ecclesiastical Court for his Remedy and upon due proof there made thereof he shall recover double value of the Tithe so taken or lost besides his cost and charges of Suit But because in this principal Case the Parson sued in the Ecclesiastical Court for the Right of his Way whether he was to have that Way or not which belonged properly to the Common Law and not Triable there in the Ecclesiastical Court for this cause the Court granted a Prohibition to stay their proceedings in the Ecclesiastical Court A ABby-Lands were five waies priviledged or discharged of Tithes viz. by Composition Bull or Canon Order Prescription and Unity of possession of Parsonage and Land time out of mind together without payment of Tithes It is supposed that no Land which belonged to Abbots Priors c. is at this day discharged of Tithes but such as came to the Crown by the Statute of 31 H. 8. c. 13. All Monasteries under Two hundred pounds per Aâ— were to be dissolved by the Statute of 27 H. 8. But those of 200 l. per Ann. or upwards not till the 31 of H. 8. The Unity aforesaid or perpetual Unity is where the Abbot Prior c. time out of mind have been seized of the Lands out of which the Tithes arise and also of the Rectory of the Parish in which the Lands lie Which Unity as to a discharge of Tithes must have these four properties 1 It must be Justa as to the Title 2 Perpetua or time out of mind 3 Aequalis that is a Fee-simple both of the Lands and Rectory 4 Libera or Free from the payment of all manner of Tithes whatsoever In a Case where an Abbot held a Pâ—rsonage Impropriate which was discharged of Tithes and had purchased Lands so that the Tithes were suspended in the hands of the Abbot and afterwards the Possessions of the Abbot coming to the King by the Statute of 31 H. 8. The Question was Whether the Lands so purchased by the Abbot before his Surrender to the King were discharged of the Tithes It was the Opinion of Mr. Plowden in that case that they were not discharged for that no Lands were discharged but such as were lawfully discharged by right Composition or other lawful thing and in the said Case the Lands were not discharged in Right but suspended only during the time that they were in the Abbots hands Acorns or Mast of Oak shall pay Tithe for they are of Annual increase as in Lifoâ—d's Case These Acorns or Mast are known in the Law by the word Pannagium so Lindwood Pannagium est pastur Porcorum in Nemoribus Sylvis ut puta de glandibus aliis fructâ—bus arbâ—rum Sylvestrium quarum fructus aliter non solent colligi Lindw de Decim c. Sancta Ecclesia verb. Pannagiis And Mr. Skene de verb Sign defines this to be a Duty given to the King for the pasturage of Swine in his Forrests Also Pannagium is taken for the money which is paid for the Pannage it self as appears by the Statute of Charta de Foresta cap. 90. Vnusque liber homo c. Aftermoath or Second Moath Of this Tithes shall be paid de jure unless there be a Special Prescription of Discharge by paying the Tithes out of the first Moath and then it shall be discharged But if a man pay Tithe-Hay no Tithes ought to be paid dâ— jure afterwards for the pasture of the same Land for the same year for he shall not pay Tithes twice in one year for the same thing for that the After-pasture is but the Reliques of Hay whereof he had paid Tithes before Nor shall Tithes be paid for Agistments in such After-grass In Johnson and Awberie's Case it was Resolved that Tithes are not to be paid for the After-pasture of Land nor for Rakings of Corn And where in Awberies Case Suit was in the Ecclesiastical Court for the Tithe of the After-mowings of Grass anâ— upon a Surmize That the Occupiers of the Land had used to make the first Cutting of the Grass into Cocks for Hay and to pay the Tenth Cock thereof in satisfaction of the First and After-mowings a Prohibition was awarded So that After-grass or After-pasture or Aftermoath do not pay Tithes where they have paid before of the Grass of the same ground the same year save where by Covin to defraud the Parson more Grass is left standing than was wont to be or is there usual Nor is the Herbage of Cattel which eat up that Grass Tithable unless there be some Fraud in the case Notwithstanding the Premisses although the Aftermoath be not Tithable where the Owner at his own costs charges and labour made the first Grass into Hay yet Q. whether it may not be otherwise where the Owner doth no more than cut down the Grass of the first Moath Agistment that is a taking into Grass the Cattel of Strangers within the Parish where the Grass grows this is Tithable and regularly by the Owner or Tenants of the Land not of the Cattel unless the Custome makes it Tithable by the Stranger Heretofore there was not any Tithe paid for this Agistment but now the Law is taken to be otherwise And is
modo Decimandi The manner of right Tithing is regularly thus viz. That Tithes and all other Church-Duties shall be yielded and paid according to the Usage and Custome of the place where they are paid And of Predial Tithes the Tenth is to be set apart from the Nine parts in the place where they grow before the said Nine parts are carried away which Separation from the Nine parts is to be done in presence of the Parsons Servant upon seasonable Notice given to the Parson by the Parishioner and the Parson is to have reasonable time to take away his Tithe And as for the Small Tithes such as Plants Herbs Seeds of Woad Flax Hemp c. they are Tithable in kind if not Compounded for And Personal Tithes such as are for Profit made by Trade and Manual Occupations except Common Labourers are to be paid as they were used to be paid forty years before the Statute of 2 Ed. 6. and as of right they ought to be paid as at or before Easter some small Sum of Money according to the Custome of the place but without a Custome nothing to be paid The Tithes of one thing only cannot be in satisfaction of Tithes of the same and other things of another kind Nor is Tithe twice payable of one thing in one and the same year Therefore if a Parson hath Tithe-Fruit of a Tree felled the same year and made into Billets or Faggots he shall not have Tithe thereof Nor are Tithes payable by any but such as have a Property in the thing Tithed therefore they are not payable of things Stollen nor shall things meerly for Pleasure pay Tithes nor the things that are in no mans property only the King shall have the Tithes arising out of Ground not in any Parish And if Tithe be paid to one that comes into the place by Simony it is at his own peril if afterwards he be forced to pay it again Where Sale is or may be made of a thing Tithable the equallest way is to lett the Parson or Vicar have the Tenth peny made of the thing sold And although Tithe is not payable to the Simonaick Parson yet an Incumbent wrongfully Collated by the Bishop may be such a person as is capable of Tithes and may Sue for the same In Love and Piggots Case it was said That if a Lessee for years be Sued in the Spiritual Court for Tithes he in the Reversion may have a Prohibition Pasch 29. El. B. R. Cro. Rep. par 1. And a Lay-man lawfully Interessed in Tithes being disseized thereof or wronged therein may have his Remedy for them in the Kings Temporal Courts This takes not away the ordinary Remedy for them in the Ecclesiastical Court the Law as to that being as it was before the Statutes Likewise for refusal to pay Tithes or not setting forth Predial Tithes the Parson may Libel in the Ecclesiastical Court or he or other Proprietor thereof may Sue at the Common Law or for the Subtraction thereof at their Election and recover the Treble value of the Tithes Yet where only the Right of Tithes doth come in debate and not the right of Patronage in such case it hath been held That the Ecclesiastical not the Temporal Jurisdiction shall take cognizance thereof yea though both parties claim by Prescription which in it self is a matter Triable at the Common Law But where the parties Litigant are both Ecclesiastical persons and the Claim of the one be for an Annual Pension out of the Parsonage of the other although he claim the same by Temporal grounds viz. by Prescription and Real Composition he hath his Election to sue for the same either in the Ecclesiastical or in the Temporal Court And by the Statute of 34 H. 8. c. 16. Ecclesiastical persons may sue for Pensions in the Ecclesiastical Court but if he brings a Writ of Annuity for the same and declares upon the Prescription he hath then determined his Election that if afterwards he Sue for this Annuity in the Ecclesiastical Court a Prohibition will lie If Suit be in the Ecclesiastical Court between Parson and Vicar for Tithes Prohibition hath alwaies been denied if there be not other matter determinable by the Common Law Mich. 16 Jac. B. R. Roll. Rep. But where the Question is only between the Parson and the Vicar it is to be decided in the Ecclesiastical Court Yet it is said That a Real Contract though made between Ecclesiastical persons and of Ecclesiastical things is only cognizable at the Common Law But if a Custome of Tithing be agreed by and between both parties it may be sued for in the Spiritual Court but if the Custome be denied a Prohibition may be awarded till it be Tried at Common Law But where there is a Modus Decimandi be it of Lands or a certain Annual Sum of money or other profit time out of mind given to the Parson and his Successors in full discharge of all Tithes in kind in such a place certain if this Sum be not paid yet may not the Parson sue for Tithe in kind but for the Money in the Ecclesiastical Court But yet the Modus it self is Triable at the Common Law and not in the Spiritual Court Likewise after that the Tithes are carried away out of the Ground it hath been held Suit cannot then be commenced for them in the Ecclesiastical Court because they are then become Lay-Chattels and the Property thereof is altered And for the not setting forth of Tithes not only the Parson or Rector but also the Farmer of the Rectory may sue upon the Statute The bare severing or setting forth of Tithes doth not make them to become Lay-Chattels but the carrying them away out of the Ground doth And therefore if Tithes be severed and set forth and afterwards the Parson Lease out the Parsonage not mentioning the Tithes the Tithes set forth shall pass for although they be divided and severed yet they are as yet Spiritual Duties of the Parsonage But if the Tithes be carried into the Barn and afterwards the Parson Leaseth out his Parsonage with all Profits c. those Tithes shall not pass to the Lessee for that now they are become Lay-Chattels It was Agreed clearly in Cannen's Case That if a Parishioner sever his Hay and it be made into Reeks or Cocks and after fell it the Parson cannot sue the Vendee for the Tithes thereof but him that severed it and on this matter Prohibition was granted H. 16. Jac. B. R. Roll. Rep. If a Parishioner doth not set forth his Tithes or subtracteth them after they be once set forth the Parson may Libel against him in the Spiritual Court or else by the Statute of 2 Ed. 6. cap. 13. the Parson or other Proprietor of the Tithes may have their Action in the Kings Temporal Courts for the not setting forth or subtracting of them at their Election