The resolutions of the judges upon the several statutes of bankrupts as also, the like resolutions upon 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by T.B., Esq.

Mich. 8 Jacob. Regis.

Robert's Case.

In this Term, in the Case of one Roberts, a Prohibiti∣on had been granted in a Case upon Substraction of

Tythes, upon surmise that the Plaintiff being Defen∣dant in the Spiritual Court, had but one Witness there to prove his Demise: to which the Court said, That singu∣garis Testis is not allowable: And upon sight of a Pro∣hibition in the same Case in Hill. 3 Eliz. in Ban••o Regis. It was Resolved by Coke, chief Justice, Et totam Curiam in Communi Banco, that Consultation should be granted for divers Reasons.

1. It appears by the Register, fol. 5. that it is put for a Rule, Quod non est consonum rationi, quod cognitio ac∣cessorii in Curia Christianitatis impediatur, ubi cognitio cau∣sae principalis ad forum Ecclesiasticum ••••scitur pertinere; and with this agr••es 1 R. 3. 4.

2. If such a surmise shall be allowed, then in every Case, for meer delay, such a surmise may be made. And when the spiritual Court hath Jurisdiction of the prin∣cipal Cause, they determine the accessory: But it was objected, That if A. claiming a Lease by B. of a Recto∣ry, Libels for substraction of Tythes, and the Defendant pleads a former Lease made by B. and C. and the De∣fendant hath but one Witness in the Case to prove the former Lease; if no Prohibition shall be granted, the Defendant shall be charged. And if C. sue him upon the Statute 2 Ed. 6. the testimony of one only shall be then sufficient, and so he shall he twice charged.

To which it was answered, That first the fault was the Defendants, that he would not set forth his Tythes, and then he shall be charged whosoever takes them. But in such the Ecclesiastical Court will upon one good Witness, and any concurrent v••hement presumption, al∣low of such a proof. But if a question arise upon con∣struction of a Statute, and the Ecclesiastical Court will Judge of it against the Rule of Law, there upon speci∣al surmise of it, a Prohibition lies.

And Coke, chief Justice, cited a notable Judgment, Pasch. 35 Eliz. in Banke le Roy. Fuller brought a Pro∣hibition against Clements, and Wiskard; and Fuller

counted that himself was Owner of the Rectory of Long∣ham in the County of Norfolk, and libelled against Cle∣ments before the Bishop of Norwiches Official, for sub∣straction of Tythes, scil. Wheat pendent; which Suit Wis∣kard intervening pro intercesse suo, made there allegations against Fuller:

1. That the said Rectory was impropriate to the Mo∣nastery of Windling, and by dissolution thereof, came to H. 8. and conveyed it by mean Discent to Queen Elizab. who by Letters Patents granted it to Min and Hall, who enfeof••ed Bozome, who let it to Wiskard for four years; and upon proof of his allegations; in fine, Sen∣tence was given against Full••r, and several Costs given to Clements and Wiskard: Fuller appeals to the Court of the Arches, and there Claims the said Rectory from Halls being seized of it, who by his Deed granted the same to Sir Edward Clere, (before Bozomes Feoffment,) and that Sir Edward did enfeoff Fuller, and offered to prove the Deed made to Sir Edward by one sole Witness, which the Ecclesiastical Court would not allow of. And Fuller further said, That though he had alledged these matters were determinable at Common Law, yet they gave Sentence: The Defendants to have a Consultation pleaded, That Fuller proved the delivery of the Deed by Clere and Mouse, but could not prove Livery and Seisin according to the Deed; and that therefore Sen∣tence was given without that, that the Judges would not admit the proof without other Witnesses; upon this Fuller demurred, and his Council objected.

1. That Wiskard pleads matter determinable meerly at Common Law, viz Letters Patents, &c. and on the other part Fuller Claims an Estate in the Rectory, by conveyance at Common Law: And the Question in the Court Ecclesiastical being? Who hath the best Estate in the Rectory; this ought to be tryed by the Common Law, for this is the Birth-right of the Subject.

2. It was Objected, That all matters in Law ought to be determined by the Judges of the Law: And in this Case matters of Law arising, as if a Rectory be gran∣ted by Deed with all Tythes, &c. and no Livery is made. If the Tythes may pass with any Livery; this is a questi∣on to be decided by the Judges of the Common Law: Quod quisque novit in hoc se exerceat.

3. It was objected, That Wiskard was a meer stranger to the Suit, and all his Allegation is Temporal; and for that it is a stronger Case to maintain a Prohibiti∣on.

4. It was Objected, That Fuller had but one Witness to prove the delivery of the Deed, and in the Ecclesiasticall Law Unus Testis et nullus Testis, for which causes it was prayed the Prohibition might stand.

To which it was answered by Sir Christopher Wray, chief Justice, Et per totam Curiam, to the first Objection, That;

1. Where the original belongs to the Ecclesiastical Court, the determination of all that depends on it be∣longs to the same Court, though the matter be tryable at Law; but where the Original matter belongs to the Common Law, and there commenced, and issue taken upon matter tryable by the Ecclesiastical Law, there the Judges of our Law shall write to the Judges of the Eccle∣siastical Court to try it, and to certify. As in action Ancestral, if Bastardy▪ be pleaded in the Demandant, and upon this Issue is joyned, this shall be tryed by the Bishop, and his Certificate shall bind; So in a Quare Impedit: But though such issues are in their nature Trya∣ble by the Law Ecclesiastical, yet if the Case was such, that the Ecclesiastical Court could not try it, then (that Justice be not want••ng) such Ecclesiastical matter shall be tryed by the Common Law, as 4 Ed. 3. 26. But against this was objected the Statute de Articulis Cleri, cap. 13. Quod de Idoneitate person•• perso••atae ad bene∣ficium Ecclesiasticum pertineat examinatio ad Judicom Eccle∣siasticum;

upon which it was concluded, That the Try∣all de idomeitate personae in all Cases belong to Court-Christian: To which it was answered and resolved. That the Tryal of ability belongs to them; but this Tryal must be by examination of the Party. 〈◊〉〈◊〉 39 Ed 3. 2. That Earl of Arund••ll'•• Case, and 4 Ed. 3. 25. 16 Eliz. Dyer 327. So if Bastardy be alledg••d in one who is dead, Vide 17 Ed. 3. 5. where Bastardy is alledged in the Tenant, and one who is a stranger to the Writ, who are S••sters. Vide 32 Ed. 3. Trial 59. where the Tenant doth alledge Bastardy in himself, and the Demandant doth aver him Mulier, Vide 29 Ass. pl. 14. b. Eliz. Dyer 226. 228. If the issue be Quod vacavit p••r resignationem, part of which is Spiritual, part Temporal; this shall be tryed per paiis, vide 9 H. 7. But admission and in i••u∣tion, though it be alledged in a stranger to the Writ, yet this shall be tryed by the Ordinary, as appears 7 Ed. 6. 78. 6. in Dyer, & similia.

2. To the second: answered and resolved, That if up∣on Consultation with men learned in the Law, they give Sentence according to Law; this is well done, and no Prohibition ought to granted: but if they draw the interest of any man ad alîud examen, there Prohibition lyes. And in the Case at the Barr, they well resolved the Law; for by the said Livery of the Charter, the Tythes do not pass as in gross, because the intention of Parties was to pass the entire Rectory by the Feoffment, and to pass the Tythes, and so dismember the Recto∣ry.

3. As to the third, Resolved, That by the Ecclesiasti∣cal Law a stranger may come in pro interesse suo, and when they have Jurisdiction of the Original cause of a Suite, we ought not to question their proceeding, un∣less they proceed inverso ordine, and this ought to be▪ re∣dressed by appeal.

4. As to the fourth, Resolved, That such a surmise, That he hath but one Witness, is not sufficient to have a

Prohibition, because the Court Ecclesiastical hath ju∣risdiction of the Principle. And if such surmise shall be sufficient, all Suits in the Ecclesiastical Court shall be delayed, or quite taken away, for such surmise may be made in every Case.

It was Resolved upon Evidence, by Coke, chief Justice, de Banco, inter J. S. who informed upon the Statute of Usury and Smith, that the Parties to the supposed Usuri∣ous Contract, shall not be admitted Witnesses, because upon the matter they were Testes in propria causa.