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.

LIB. 13. & ult. (Book 13)

Mich. Anno 6. Jacobi Regis; In the Common-Pleas.

Willow's Case.

IN Trespass brought by Richard Stallon, against Thomas Bradye (which began in Easter Term, 6 Jac. rot▪ 1845.) for breaking his House and Close at Fendit∣ton in Com. Cambridge: And the New Assignment was in an Acre of Pasture. The Defendant pleads, that the Place where, &c. was the Land and Freehold of Thomas Willowes, and Richard Willowes; and that he, as Servant, &c. The Plaintiff for Replication saith, That the Place where was parcel of the Mannor of Fenditton, and demisable, &c. by Copy of Court-Roll in Fee-simple; and that the Lords of the Mannor, granted the Tene∣ments, in which &c. to John Stallon and his Heirs, who surrendred them to the said Willowes, and Willowes, Lords of the said Mannor, to the use of the Plaintiff and his Heirs, who was admitted, &c. The Defendant rejoyns, and saith; True it is, that the Tenements in which &c. were parcel of the Mannor, and demisable &c. and the surrender and admittance such prout, &c. But the said Bradye further saith, That the Tenements in which, &c. at Richard Stallons Admission, were, and yet are of the clear

yearly value of 53 s. 4 d. and that within the Mannor there is such a Custome, Quod rat••onabilis denariorum sumna legalis monetae Angliae, super quamlibet admissionem cujus••ibet perso••ae tea••at. per Domi••um vel Dominos Manerii praed. sive per se••••sch. &c. ad aliquas terras, &c. secundum cons. Maner. illius debetur, & a tempore quo &c. debitum fuit Dom. &c. tempore ejusdem admission. pro fine &c. quod idem Dominus vel Domini vel seneschallus suus Cur. ejusdem M••nerii pro tempore existen. usus fuerit, vel usi fuer. per tot. tempus praed. in plena Cur. Man••r. illius pro admissione ejusdem personae, seu earund. personar. sic facta assidere & appunctuare. Anglicè, Assess and Appoint eand. rationabil. summam denarior. &c. Et summam sic assessam personae admissae, &c. solverent &c. eidem Don. &c. And further saith, That the Steward of the said M••nnor, at a Court holden the first of October, Anno quarto Regis nunc, admitted the Plaintiffs to the Tenements, in which &c. and assessed and set a reasonable sum of money, viz. 5 l. 6 s. 8 d. viz. Valorem eo••undem tenementor. per duos annos & non ultra pro fine pro praed. admissione &c. And the said Steward, at the same Court, gave notice to the Plaintiff, the said sum was to be paid, &c. And further saith, That the Willowes and Willowes afterwards, viz. 2 Novem. in the 4th year aforesaid, at Fenditto•• aforesaid, requested the said Richard Stallon to pay them the said 5 l. 6 s. 8 d. which the said Richard utterly refused, &c. By which, the said Richard forfeited to the said Thomas and Richard Willowes all his Right, Estate, &c. The Plaintiff surjoyneth, and saith, that the said sum of 5 l. 6 s. 8 d. &c. was not ra∣tionabilis finis, as the said Thomas Bradley above hath al∣leadged, &c. Upon which, the Defendant doth demur in Law, &c. And in this Case, these Points were Re∣solved by Coke Chief Justice, Walmesly, Warberton, Daniel, and Foster, Justices.

1. If the Fine had been reasonable, yet the Lords ought to have set a certain time and place when the same should be paid, because it stands ••••on the point of For∣feiture.

As if a man assures Lands to one and his Heirs, up∣on condition to pay to the Bargainee and his Heirs 10 l. at such a place; or that he and his heirs shall re-enter: there, because no time is limited, the Bargainor ought to give notice to the Bargainee, &c. when he will tender the money, and he cannot tender it when he pleaseth: and with this agrees 19 Eliz. Dyer 244. So in the Case at the Bar, the Copyholder is not bound to carry his Fine alwayes with him, &c. And though that the Rejoynder is, that the Plaintift refused to pay the Fine; so he might well do, when the Request is not lawful or reasonable: And he that is to pay a great Fine, as 100 l. or more, it is not reasonable that he carry it always with him; And the Copyholder was not bound to do it, because the Fine was incertain and arbitrable; as was Resolved in Hul∣barts Case, in the 4th Part of my Reports, among the Co∣py-hold Cases.

2. It was Resolved, That though the Fine be un∣certain and arbitrable; yet it ought to be secundum ar∣bitrium boni viri; and it ought to be reasonable, because Excessus in re qualibet, jure reprobatur communi: for the Common-Law forbids any excessive Distress, as appears 41 Ed. 3. 26. And this doth appear to be the Common-Law; for the Statute of Articuli super Chartas extends onely for a grievous Distress taken for the Kings Debt. See F. N. B. 147. a. and 27 Ass. 51. 28 Ass. 50. 11 H. 4. 2. and 8 H. 4. 16. &c. And so if an excessive Amer∣ciament be imposed in any Cou••t-Baron, or other Court not of Record, the Party shall have Moderata mis ericordia. And Magna Charta is but an Affirmance of the Common-Law in this Point. See F. N. B. 75. And the Common-Law gives an Assize of Sovient Distress, and multiplica∣tion of Distress found, which is Excess. And with this agrees 27 Ass. 50, 51. F. N. B. 178 b. And if Tenant in Dower, hath Tenants at Will, that are rich, and makes them poor, by excessive Tallages and Fines, this is wast, F. N. B. 61. b. 16 H. 3. Wast. 135. and 16 H. 7.

Vide also the Register Judicial. fol. 25. B. Waste ly∣eth in Exulando Henricum & Hermanum, &c. Villeynes, Quorum quilibet tenet unum messuagium & unam Virgat. terrae in Villenagio in Villa praed. &c. By all which it appears, the Common-Law forbids excessive oppressing of Villains, &c. So in the Case at Bar, though the Fine is uncertain, yet it ought to be reasonable; and so it ap∣pears by the Custome alleadged by the Defendant. See Hubbard's Case before, in the 4th Part of my Reports. And when reasonableness concerning a Fine is in questi∣on, the same shall be determined by the Court, in which the Action depend, 21 H. 6. 30. 22 Ed. 4 27. and 50 29 H. 8. 32. &c.

3. It was Resolved, That the Fine in the Case at the Bar was unreasonable, being for the admittance of a Co∣py-holder in Fee-simple, upon a Surrender made; for this is not like a voluntary Grant, &c. for there Arbitrio Domini res estimari debet. But when the Lord is compel∣lable, to admit him to whose use the Surrender is; And when C••stuy que use is admitted, he shall be in by him who made the Surrender, and the Lord is but an Instru∣ment to present the same.

4. It was Resolved, That the Surjoinder is no more, than what the Law saith: And for the Causes aforesaid, Judgment was given for the Plaintiff.

And Coke Chief Justice said in this Case, That if the Court of Admiralty amerce the Defendant excessively at discretion (as seems by 19 H. 6. 7.) the same shall not bind the Party; and be it excessive or not, it shall be determined in the Court, where the Action shall be brought: And a Writ of Account against a Bayliff or Guardian, Quod reddat ••i rationabilem comp••tum, &c. for the Law requires Reason, and no excuse or extremi∣ty in any thing.

Mich. 6 Jac. Regis. in the Common-Pleas:

Porter and Rochester's Case.

This Term Lewis and Rochester, who dwelt in Essex, in the Diocess of London, were sued for subtraction of Tythes growing in B. in the said County of Essex, by Porter, in the Court of the Arches of the B. of Canter∣bury in London: And the Case was; The Archbishop of Canterbury ••ath a peculiar Jurisdiction of 14 Parishes, called a Deanry, exempt from the Authority of the Bishop of London, whereof the Parish of St. Mary de Arcubus is the chief: And the Court is called the Arches, because it is holden there. And a great Question was moved, If in the said Court of Arches holden in London, he might cite any dwelling in Essex, for substraction of Tythes growing in Essex; or if he be prohibited by the Statute 23 H. 8. cap. 9. which after Debate at Bar by Councel; and also by Dr. Ferrard, Dr. James, and others, in open Court; and lastly, by all the Justices of the Common-Pleas: A Prohibition was granted to the Court of Arches. And, in this Case, divers Points were Resolved by the Court.

1. That ••••l Acts of Parliament, made by the King, Lords, and Commons, in Parliament, are parcel of the Laws of England, and therefore shall be expounded by the Judges of the Laws of England, and not by the Civilli∣ans & Cannonist, although the Acts concern Ecclesiasti∣cal Jurisdiction. And in 10 H. 7. the Bishop of London caused on•• to be imprisoned, because the Plaintiff said, he ought not to pay his Tythes to his Curate: And the im∣prisoned Party brought his Action of false Imprison∣ment, against those that arrested him by the Bishops Command; and there the Matter is well argued what words are within the Statute, and what words are not: So upon the same Statute, was Resolved in 5 Ed. 4. in Keysar's Case, in the Kings Bench; which see in my Book

of Presidents: And so the Statutes of Articuli Cleri de Prohibitione regiâ: De Circu•• sp••cte agitis, of 2 Ed. 6. cap. 13. &c. have alwayes been expounded by the Judges of the Common-Law, as was adjudged in Wood's Case, Pasch. 29 Eliz. So 21 H. 8. cap. 13. See 7 Eliz. Dy••r 233. 15 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dy••r 327. 18 Eliz. Dyer 352, & 347. 22 Eliz. Dyer 377.

2. Resolved by Coke Chief Justice, Warb••••ton, Daniel, and Fostér, Justices, That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to c••••e any one out of his own Diocess: for Dioc••ses dicitur distinctio, &c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus & commissa gubernatio in unius, and is derived a Di, that sig∣nifies duo, two; et Electio, quia separat duas Jurisdictio∣nes: And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London, for this cause it is fitly said in the Title, Preamble, and Body of the Act, that when the Archbishop sitting in his exempt Peculiar in London, cites one dwelling in Essex, he cites him out of the Bishop of Londons Diocess; ergo, out of the Diocess. And in the Clause, of the Penalty of 10 l. it is said, Out of the Diocess. &c. where the Party dwelleth; which a∣grees with the signification of Diocess befóre: And the words (far off) were put in the Preamble, to shew the great mischief that was before the Act; as the 32 H. 8 cap. 33. in the Preamble, it is disseizins with strength. And the Body of the Act saith, such Disseizor, the same extending to all Disseizors: but Disseizin with force, is the greatest mischief, 4 and 5 Eliz. Dyer 219. So West. 2. cap. 5. adjudged 44 Ed 3. 18. So 21 H. 8. cap. 15. In all which, the Case is stronger, than the Case at Barre; there the word (such) in the Body of the Act, referring to the Preamble, which is not in our Case.

2. The Body of the Act is, No Person shall be hence∣forth cited before any Ordinary, &c. out of the Diocess, or peculiar Jurisdiction, where the Person shall be dwel∣ling;

and if so, then a fortiori, the Court of Arches which sits in a Peculiar, shall not cite o••hers out of another Dio∣cess. And the words (out of the Diocess) are meant of the Diocess or Jurisdiction of the Ordinary where he dwel∣leth.

3. Observe, the Preamble of the Act recites expresly, That the Subjects were called by compulsory Process to appear in the Arches, Audience, and other Courts of the Archbishoprick of this Realm: So that the Intention of the Act was to reduce the Archbishop to his proper Dio∣cess, unless in five Cases.

1. For any Spiritual Offence or Cause committed, or omitted, contrary to Right and Duty by the Bishop, &c. which word (omitted) proves, there ought to be a Default in the Ordinary.

2. Except it be in Case of Appeal, and other lawfull Cause, where the Party shall find himself grieved by the Ordinary, after the matter there first begun, ergo, it ought to be first begun before the Ordinary.

3. In case the Bishop or Ordinary, &c. dare not, or will not convent the Party to be sued before him.

4. In case the Bishop or Judge of the place, within whose Jurisdiction, or before whom the Suit by this Act should be begun and prosecuted, be party, directly, or in∣directly, to the Matter or Cause of the same Suit.

5. In case any Bishop, or other inferiour Judge under him, &c. make Request to the Archbishop, Bishop, or o∣ther inferiour Ordinary or Judge; and that to be done in Cases onely, where the Law Civil or Common doth affirm, &c.

1. Also there are two Provisoes which explain it also, viz. That it shall be lawful for every Archbishop, to cite any person inhabiting in any Bishop, Diocess in his Province for matter of Heresie: by which it appears, that for all Causes not excepted, he is prohibited by the Act.

2. There is a saving for the Archbishop, calling any Person out of the Diocess where he shall be dwelling, to the Probate of any Testament: which Provisoe should be vain, if notwithstanding that Act should have concurrent Authority with every Ordinary throughout his whole Province: Wherefore it was concluded, That the Arch-Bishop out of his Diocess, unless in the Cases excepted, is prohibited by the 23 H. 8. to cite any man out of any o∣ther Diocesse: which Act is but a Law declaratory of the antient Canons, and a true Exposition of them. And that appears by the Canon, Cap. Romana in sexto de Ap∣pellationibus, & Cap. de competenti in sexto. And the said Act is so expounded, by all the Clergy of England, at a Convocation at London, Anno 1 Jac. Regis, 1603. Canon 94.

And whereas it is said in the Preamble of the Act, in the Arches, Audience, and other High-Courts of this Realm: It is to be known, that the Archbishop of this Realm, before that Act, had power Legantine from the Pope; By which they had Authority not onely over all, but concurrent Authority with every Ordinary, &c. not as Archbishop of Canterbury, &c. but by his Power and Au∣thority Legantine. Et tria sunt genera Legatorum; 1. Qui∣dam de latere Dom. Papae mittuntur, &c. 2. Dativi qui simpliciter in Legatione mittuntur, &c. 3. Nati seu nativi, qui suarum Ecclesiarum praetextu legatione fingantur, et sunt 4. Archiepiscopus Cant. Eboracensis, Remanensis, et Pisanis: Which Authority Legantine is now taken away and abo∣lished utterly.

3. It was Resolved, That when any Judges are by Act of Parliament, if they proceed against the Act, there a Prohibition lyes. As against the Steward and Mar∣shal of the Houshold; Quod non teneant placita de libero tenemento, de debito, de Conventione, &c. So Articuli su∣per Chartas, cap. 3. Register fol. 185. So against the Constable of Dover. So to Justices of Assize; Quod in∣quisitiones quae sunt magni exactionis non capiantur in Pa∣tria.

So to the Treasurer and Barons of the Exchequer•• upon Art. super Chart. c. 4. Stat, Rutland. cap. ult. See F. N. B. 45. 46, &c. 17 H. 6. 54. vide 13 Ed. 3. Title Prohibition. So against all Ecclesiastical Judges, upon 2 H. 5. 3. and therewith agrees 4 Ed. 4. 37. and F. N. B. 43. &c. So the Case upon the Stat. 2 H. 5. c. 15. as appears by the President, 5 Ed. 4. Keysons Case, 10 H. 7. 17. See Paston's Opinion, 9 H. 6. 3. See the 35 H. 6. 6. when any things is prohibited by a Statute, if the Party be convicted, he shall be fined for the Contempt to the Law. And if every person should be put to his Action upon the Statute, it would encrease Suits, and a Prohibi∣tion is the shorter and easier way. And the Rule of the Court was, Fiat prohibitio Curiae Cantuar. de Arcubus. In∣ter partes praedict. per Curiam. And Sherly, and Harris, jun. Sergeants at Law, were at Councel of the Case.

Mich. 6 Jac. Reges.

Edward's Case.

The High-Commissioners, in Causes Ecclesiastical, objected divers English Articles, against Thomas Edwards of Exeter: As,

1. That Mr. John Walton, being trained up in Oxferd University, was there worthily admitted to several De∣grees of Schools, and deservedly took upon him the De∣gree of Dr. of Physick.

2. That he was a Reverend and well-practised man in the Art of Physick.

3. That you the said Thomas Edwards, are no Gra∣duate.

4. That you knowing the Premisses, notwithstanding you the said Edwards, &c. of purpose to disgrace the said Dr. Walton, &c. did, against the Rules of Charity, write and send to the said Dr. Walton, a leud and uncharitable Letter, taxing him therein of want of Skill and Judg∣ment in his Profession, &c. And so far you exceeded in

your said uncivil Letter; that you told him therein, in plain terms, He may be crowned for an Ass, &c.

5. And further to disgrace the said Mr. Dr. Walton, in the said University, did publish a Copy of the said Letter to Sir William Courtney, and others; and in your Letter was contained Sips••lam lichenen mentegram; Take that for your Inheritance, and thank God you have a good Fa∣ther. And did you not covertly imply thereby, that the said Dr. Waltons Father (late Bishop of Exeter) was subject to the French Pox and Leprosie, &c.

6. That in another Letter you sent to Dr. Maders, Dr. in Physick also, you named Dr. Walton, and made a Ho••n in your Letter: Whether you meant not thereby, that they were both Cuckolds; or what other meaning you had.

7. You knowing Dr. Walton to be one of the High-Commission in the Diocess of Exeter; and having ob∣tained a Sentence against him in the Star-Chamber, for contriving and publishing a Libel, did triumphingly say, You had gotten on the Hip a Commissioner for Causes Ecclesiastical, &c. which you did to disgrace him, and in him the whole Commission in those Parts.

8. That after the Letter Missive sent to you, you said arrogantly, That you cared not for any thing this Court can do, for that you can remove this Matter at your plea∣sure.

And this Term it was moved to have a Prohibition in this Case; and the matter was well argued: And at last it was Resolved by Coke Chief Justice, Warberton, Daniel, and Foster, Justices; That the first six Articles were meer∣ly Temporal; and, in truth, is, in the nature of an Acti∣on upon the Case, for Scandal of Dr. Walton in his Pro∣fession of Physick: and therefore, for them a Prohibition doth lye, for divers Causes.

1. Because the Persons and Matters are Tempo∣ral.

2. Because it is for Defamation; which if any such shall be for the same, it ought to begin before the Ordi∣nary, because it is not such an enormous Offence, which is to be determined by the High-Commissioners; nor doth Suit lye before them, for calling the Doctor Cuck∣old, as in the seventh Article: And 'twas said, the Com∣missioners ought to incur the danger of Praemunire.

2. It was Resolved, That the Ecclesiastical Judge cannot examine any man upon his Oath, upon the Inten∣tion and Thought of his Heart; for cogitationis poenam nemo ••moret: for the Proverb saith, Thought is free. And therefore for the 6th and 7th, were Resolved, as well for the Matter, as for the Form, to be such, to which the De∣fendant was not compelled to answer: And that to the 7th, he might justifie the same; because it appears upon his own shewing, that the Doctor was sentenced in the Star Chamber: Also, the Libel is meer Temporal; and if it were Spiritual, such a Defamation is not examinable before the High-Commissioners.

As to the last Article, it appeareth now by the Judg∣ment of this Court, that he might well justifie the said Words: Also, the Commissioners shall not have any Conuzance of Scandal to themselves, they being Parties; and such Scandal punishable by the Common-Law, as was resolved in Hales Case in Dyer, and in my Book of Presi∣dents, Hales Indictment, &c.

The Bishop of Winchester, being Visitor of Winchester-School, and other his Collegues, Anno 5 Car. cited the Usher of the said School, by force of the said Commissi∣on, to appear before them, &c. for which they incurred the danger of Praemunire: So did the Bishop of Canterbu∣ry, and his Collegues, for citing one Humphry Frank, Ma∣ster of Arts, and School-Master of Sevennock School, &c. and proceeding, &c.

Mich. 6 Jac. Regis.

Taylor and Shoyl's Case.

Taylor informed upon the Statute, 5 Eliz. cap. 4. Tam pro Dom. R••ge qua•• prose, in the Exchequer: That the Defendant had used the Art and Mystery of a Brewer, &c. and averred, That Shoyl the Defendant did not exercise the Art or Mystery of a Brewer, at the time of making the Act, nor had been Apprentice 7 years, &c. The Defendant demurred in Law, upon the Informa••••on, and Judgment was given against him by the Barons. And now in this Term, upon a Writ of Errour, the Matter was argued at Sergeants Inne before the two Chief Justi∣ces: And two matters were moved.

1. One, That a Brewer is not within the said Branch of the said Act; for the words are, That it shall not be lawful to any Persons, other than such as now use lawful∣ly any Art, Mystery, or Manual Occupation, to set up or use any Art, Mistery, or Manual Occupation, except he shall have been brought up therein 7 years at least as an Apprentice. And 'twas said, That the Trade of a Brewer is not any Air, Mistery, or Manual Occupation within the said Branch, because it is easily and presently lear∣ned, and needs not 7 years Apprenticeship to learn the sam••, it being every Country Housewifes Work: And the Act of H. 8. is, That a Brewer is not a Handicraft Artificer.

2. It was moved, That the said Averment was not sufficient; for it ought to be as general, as the Exception in the Statute is.

1. To the first, it was Resolved, That the Trade of a Brewer, viz. To hold a Common Brewhouse, to sell Beer or Ale to another, is an Art and Mystery within the said Act: for in the beginning of it, it is Enacted, That no Person shall be retained for less time than a whole year in any the Services, Grafts, Mysteries, or Arts of Cloath∣ing,

&c. Bakers, Brewers, &c. Cooks &c. Upon which words in the said Branch, the Information is grounded: Also, because every Housewife brews for her private use; so also she bakes and dresseth meat; yet none can hold a Common Bakehouse, or Cooks Shop, to sell to others, unless he hath been an Apprentice, &c. And the Act 22 H. 8. c. 13. is explained, That a Brewer, Baker, Surge∣on, and Scrivener, are not Handicrafts mentioned in cer∣tain penal Laws; but the same doth not prove, but they are Arts or Mysteries.

2. As to the second, it was Resolved, That the Inten∣tion of the Act was, that none should take upon him any Art, but he who hath Skill or knowledg in the same: for, Quod quisque norit in hoc se exerceat. And so the first Judg∣ment was affirmed.

Mich. 6 Jac. Regis. In the Common-Pleas;

The Case of Modus Decimandi.

Sherly Sergeant moved to have a Prohibition, because a Parson sued to have Tythes of Sylva Coedua, under 20 years growth in the Weild of Kent, where by the Custom no Tythes were ever paid of any Wood: And if such a Custom, in non Decimando, for all Lay-people within the said Weild, were lawful or not, was the Question. And to have a Prohibition, it was said, That though one par∣ticular man shall not prescribe in non Decimando; yet such a general Custom within a great Countrey might well be; as in 43 Ed. 3. 32. And the 45 Ed. 3. Custome 15. where an Abbot purchased Tenements after the Statute &c. and saith, That being Lord of the Town, &c. there was a Custom in the said Town, that when Tenant cesseth for 2 years, the Lord may enter, &c. And that his Te∣nant cessed for 2 years, and he entred: And the Rule of the Court is, Because it was an usage only in that Town, he was put to answer, by which appears, that a Custom

was not good in a particular Town; that perhaps might be good in a Countrey, &c. See 40 Ass. 21. & 27. 39 Ed. 3. 2. See also 7 H 6. 26. b. 16 Ed. 2. Prescription 53. Dyer 363. 22 H. 6. 14. 21 Ed. 4. 15. and 45 Ass. 8. Doct. & Stud. lib. 2. cap. 55, A particular Country may prescribe to pay no Tythes for Corn, &c. but with this Caution, that the Minister hath sufficient portion besides to maintain him, to celebrate Divine Service. And fol. 172. it is holden, That where Tythes have not been paid to Under-••oods, under 20 years growth, that no Tythes shall be paid for the same: And fol. 174. that such a Custome of a whole Country, that no Tythes of a Lordship shall be paid, is good: But the Court would advise, Whether such a Custom of a Town or Country be good: But in an••ient times, the Parishioners have given or procured to the Parson, a Wood, or other Lands, &c. To hold to him and his Successors, in satisfaction of all Tythes of Wood in the same Parish, the Parson so seized of the same, that without question is a good dis∣charge of his Tythes; and if he sue for the same, a Pro∣hibition lyes.

I will cite an antient Judgment many years past, Mic. 25 H. 3. Wilts. Rot. 5. before the King at Westminster; Samson Folyet brought an Attaint upon a Prohibition, against Thomas Parson of Swindon, because he sued him in the Spiritual Court, for a Lay••ee of the said Samson in Draycot, contrary to the Kings Prohibition, &c. and the Parson was condemned in 20 Marks, &c. which agrees with the Rule and Reason of the Law, continued unto this day: For Presidents in Ed. 2. Ed. 1. H. 3. and King John, and more antient, are not to be now followed, unless they agree with the Law and practice at this day; Statutes having changed some, and Desuetudo antiquated others. There are two Points adjudged by the said Record.

1. That satisfaction may be given in discharge of pay∣ment of Tythes: And if the Successor of the Parson en∣joy the thing given in satisfaction of the Tythes, and yet

sueth for Tythes in kind, he shall have a Prohibition, be∣cause that he chargeth his Layfee with Tythes, which is discharged of them: By which it doth appear, that Tythes cannot be discharged, and altogether taken away and extin••. And herewith agrees the Register, which is the most ancient Law-Book, fol. 38. By which also it appears, That Tythes may be discharged, and that the matter of discharge ought to be determined by the Com∣mon-Law, and not in the Spiritual Court. Also by the Act of Circumspecte agatis, made 13 Ed. 1. It is said, S. Rector petat versus Paro••hianos oblationes & decimas debi∣ta•• & consuetas &c. Which proves, there are Tythes in kind; and other Tythes due by Custom, as a Modus Deci∣mandi &c. And yet it is Resolved, 19 Ed. 3. Jurisdiction 28. the Ordinance of Circumspecte agatis is not a Statute, and that the Prelates made the same; and yet then the Prelates acknowledged, That there were Tythes due by Custome, which ••is a Modus Decimandi. By which it appears also, that Tythes, by Custom, may be altered to another thing. See 8 Ed. 4. 14. F. N. B. 41. g. vide 3 Ed. 3. 17. 16 Ed. 3. An∣nuity 24. 40 Ed. 3. 3. b. and F. N. B. 152. And if the Lord of a Mannor hath alwayes holden his Mannor dis∣charged of Tythes, and the Parson had before time of memory divers Lands in the same Parish of the Gift of the Lord, of which the Parson is seized at this in Fee; in respect of which, the Parson, nor any of his Pred••cessors, ever had received any Tythes of the said Mannor: If the Parson now sue for Tythes of the said Mannor, the Owner of the Mannor may shew that special Matter, &c. And the Proof, that the Lord of the Mannor gave the Lands, that Tythes should never be paid, at this day is good Evidence, to prove the surmise of the Prohibi∣tion.

19 Ed. 3. Tit. Jurisdiction 28. It is adjudged, That Title of Prescription shall be 〈◊〉〈◊〉 in the Kings Court: And therefore a Medus Lecimandi, which accrues by Cu∣stam

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and Prescription likewise. It appears 6 H. 4. cap. 6. that the Pope, by his Bulls, discharged divers from pay∣ment of Tythes, against which the Act was made, 31 H. 8. cap. 13. Possessions of Religious Persons given to the King were discharged of payment of Tythes in certain Cases, 32 H. 8. cap. 7. provides all Tythes to be set as formerly, except such as are discharged. So 2 Ed. 6. c. 13. by which appears, one may be discharged of Tythes five wayes.

1. By the Law of the Realm, viz. the Common-Law, as Tythes shall not be paid of Coales, Quarries, Bricks, Tyles, &c. F. N. B. 53. and Reg. 54. nor of the after-Pasture of a Meadow, &c. nor of Rakings, nor of Wood to make Pales, or Mounds, or Hedges, &c.

2. By the Statutes of the Realm, as 31 H. 8. 13. 45 Ed. 3. &c.

3. By Priviledge; as those of St. Johns of Jerusalem in England, the Cistertians, Temptors, &c. as appears 10 H. 7. 277 Dyer.

4. By Prescription; as by Modus Decimandi, annuall recompence in satisfaction as aforesaid.

5. By reall Composition; as appears by the Writ ci∣ted out of the Register: By all which appears, That a man may be discharged of payment of Tythes as afore∣said. So as now it is apparent by the Law of England, both Antient and Modern, that a Lay-man ought to pre∣scribe in Modo Decimandi, & not in non Decimando; and that, in effe••••, agrees with Thomas Aquinas, in his secun∣da secundae, Quaest. 86. ar. ultimo. See Doct. & Stud. Lib. 2. cap. 55. fol. 164. That the Tenth Part is not due by the Law of God, nor by the Law of Nature, which he calls the Law of Reason: And he cites John Gerson, a Doctor of Divinity, in a Treatise which he cal∣leth, Regulae morales, viz. Solutio Decimarum Sacerdoti∣bus est de Jure Divino, quatenus inde sustente••tur, sed quoad tam hanc vei illam assignare aut in alios reditus commu∣tar•• positivi Juris est. And he holds, that a Portion is due

by the Law of Nature, which is the Law of God: but it pertains to the Law of Man to assign Hane v••l illam por∣tionem. And saith further, That Tythes may be exchan∣ged into Lands, Annuity, or Rent, &c. And also, that in Italy, and other the East-Countries, they pay not Tythes, but a certain Portion, according to the Custom: And forasmuch as the Tenth Part is now due, Ex Institutione Eccl••••••ae, that is, by their Canons; and it appears by 25 H. 8. cap. 19. That all Canons, &c. made against the King's Prerogative, &c. are void, and that Law was but Declaratory; for no Statute or Custome of the Realm can be abrogated by any Cannon, &c. and that well ap∣peareth by 10 H. 7. fol. 17. cap. 18.

The second Point, which agrees with the Law at this day, which was adjudged in the said Record, 25 H. 3. is, That the Limits and Bounds of Towns and Parishes, shall be trayed by the Common-Law, and not by the Spirituall Court. And in this the Law hath great Reason, for thereupon depends the Title of Inheritance of the Layfee, whereof the Tythes were demanded; for Fines and Reco∣veries are the common Assurances of Lay-Inheritances; and if the Spiritual Court should try the Bounds of Towns, if they determine that my Land lyeth in ano∣ther Town, than is contained in my Fine, Recovery, or other Assurance, I am in danger to lose my Inheritance; and therewith agrees 39 Ed. 3. 29. 5 H. 5. 10. 32 Ed. 4. Consultation, 3 Ed. 4. 14. 19 H. 6. 20. 50 Ed. 3. 20. and many other Presidents to this day. And Note, There is a Rule in Law, that when the Right of Tythes shall be tryed in the Spiritual Court, and the Spiritual Court hath Jurisdiction of the same, that our Courts shall be o••∣sted of the Jurisdiction, 35 H. 6. 47. 38 H. 6. 21. 2 Ed. 4. 15. 22 Ed. 4. 13. 38 Ed. 3. 36. 14 H. 7. 17. 13 H. 2. Juris••. 19▪ and when not ousted, 12 H. 2. Jurisdicti∣on 17. 13 ••. 2. ibid. 19. 7 H. 4. 34. 14 H. 4. 17. 38 Ed. 3. 56. 42 Ed▪ 3. 12. And the Causes why the Judges of the Common-Law would not permit the Ecclesiastical

Judges to try Modum Decimandi, being pleaded in their Court, is, because that if the Recompence which is to be given to the Parson, in satisfaction of his Tythes, doth not amount to the value of his Tythes in kind, they would o∣verthrow the same: And that appears by Linwood, among the Constitutions, Simonis Mepham tit. de Decimis cap. Quoniam propter, fol. 139. b. verbo Consuetudines. And that is the true Reason, and therefore a Prohibition lyes: and therewith agrees 8 Ed. 4. 14. and the other Books afore∣said, and infinite Presidents. See 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Justices.

Mich. 6 Jacobi Regis. In the Exchequer;

Baron and Boyse Case.

In the Case between Baron and Boys, in Information up∣on the Stat. 5 Ed. 6. cap. 14. of Ingrossers, after Verdict, it was found for the Informer, that the Defendant had in∣grossed Apples, against the said Act. The Barons held clearly, that Apples were not within the Act, and gave Judgment against the Informer, upon the matter appa∣rent to them, and caused the same to be entred in the Margin of the Record, where the Judgment was given. The Informer brought a Writ of Errour in the Exchequer Chamber; and the onely Question was, Whether Ap∣ples were within the said Act. The Letter of which is, viz. That whatsoever person, &c. shall ingross, or get into his or her hands, by buyi••••, &c. any Corn growing, or other Corn, or Grain, Butter, Cheese, Fish, or other dead Victuall, &c. to sell the same again, shall be accepted, &c. an unlawsul In∣grosser. And though the S••at. 2 Ed. 6. 6. 15. numbreth Butchers, Brewers, Bakers, Cooks, Coster Mongers, and Fruiterers, as Victuallers; yet Apples are not dead Vi∣ctuals within the 5 Ed. 6. there being no Provisoe for Co∣ster-mongers and Fruiterers in the said Act, as there are for Buyers and Sellers of Corn, and other Victual••. Also,

ever since the Act, they have bought Apples by Ingross and sold them again; and yet no Information was ever before this for the same; being for Delicacy, more than necessary Food. But the Stat. 5 Ed. 6. is intended of things necessary for sustenance of man, where the Statute of 2 Edward the 6. 15. made against Conspiracies, to enhance the Prices, was done by express words, to extend it to things, which are more of pleasure, than profit. But this was not resolved by the Justices, be∣cause the Information was conceived upon that Branch of the Statute concerning Ingrossers.

Hill. 27 Eliz. in Chancery.

Hill. 27 Eliz. In Chancery the Case was thus: Ninian Menvil seized of certain Lands in Fee, took a Wife, and levyed a Fine of the said Lands with Proclamations, and afterwards was indicted and outlawed of High-Treason, and dyed: The Conusees convey the Land to the Queen, who is now seized: The five years pass after the Hus∣band's death, the Daughters and Heirs of the said Nini∣an, in a Writ of Errour in the Kings-Bench, reverse the said Attainder M. 26 and 27 Eliz. and thereupon the Wife sues to the Queen by Petition, containing all the special matter: Which Petition being indorsed by the Queen, Fait droit aux Parties &c. the same was sent into Chancery, as the manner is.

And in this Case, divers Objections were made against the Demandant.

1. That the Fine with Proclamations, should bar the Wife of Dower, and the Attainder of her Husband should not help her; for as long as that remained in force, the same was a Bar also of her Dower: But admit the Attainder of the Husband shall avail the Wife, the same being reversed by a Writ of Errour, and so in Judgment of Law, as if it had never been, and against

which a man might plead there is no such Record, agree∣ing with the Book 4 H. 7. 11. and the Case in 4 H. 7. 10. b. is, A. seized of Land in Fee, was Attaint of H••gh-Treason: The King grants the Land to B. and after∣wards A. committed Trespass upon the Land: and after by Pa••l, A. was restored, and the Attainder void: This shall be as auciplable and ample to A. as if no Attainder had been. Afterwards B. brin••s Trespass for the Tres∣pass Mesne; and it was adjudged 10 H. 7. f. 22. b. that the Action of Trespass was not maintainable, because the Attainder was annulled, ab initio.

2. It was objected, That the Wife could not have a Petition, because there was not any Offic••, by which her Title of Dower was sound, viz. her Marriage, her Hus∣bands Seizin and Death: for it was said, that though he was marryed, yet if her Husband was not seized after the Age that she is Dowable, she shall not have Dower: And the Title of him that sueth by Petition, ought to be found by Office, as appears by the Books, 11 H. 4. 52. Ass. 31. 30. Ass. 28. 46 Ed. 3. bre. 618. 9 H. 7. 24. &c.

1, As to the first, it was Resolved, That the Wife should be endowed, and that the Fine with Proclamations was not a Bar to her: and yet it was Resolved, That the Act 4 H. 7. c. 24. shall barre a Woman of her Dower by such a Fine, if the Woman bring not her Writ of Dower within five years after the Husbands death, as was adjudged Hill 4 H. 8. Rot. 344. in the Common-Pleas, and 5 Eliz Dyer 224. For by the Act, the Title of Fe••e-Covert i•• saved by taking Action in 5 years, after she is uncovert, &c. But it was R••solved, That the Wife was not to be a••d••d by that saving; for in respect of her Hus∣bands Attainder, she had not any Right of Dower at his death, nor could sue for the same after his death: But it was Resolved, That the Wife was to be aided by another former saving in the same Act, viz. And saving to all other persons, viz. who were not Parties to the Fine,

such Action, Right, &c. as shall first grow or come, &c. to them, after the Fine ingrossed, and Proclamations made, by force of any Gift in Tail, or other Cause or Matter before the Fine levyed; so that they take their Action, and pursue their Title, within 5 years after such Right come to them, &c. And, in this Case, the Action and Right of Dower accrewed to the Wife, after the Re∣versal of the Attainder, by reason of a Title of Record be∣fore the Fine, by reason of the Seizin in Fee (had) and Marriage (made) before the Fine levyed, according to the meaning of the said Act.

And as to the Point of Relation, it was Resolved, That sometimes by construction of Law, a thing shall relate, ab initio, to some intent, and to some not: for relatio est fictio Juris, to do a thing which was and had essence, to be adnulled, ab initio, betwixt the same Parties, to advance a Right, but not to advance a Wrong, which the Law hates; or to defeat Collateral Acts, which are lawful, and chief∣ly, if they concern Strangers: for true it is, as hath been said, that as to the mean profits, the same shall have relation by construction of Law, till the time of the first Judgment given; and that is to favour Justice, and ad∣vance his Right that hath Wrong by the Erroneous Judgment. But if a Stranger hath done a Trespass up∣on the Land in the mean time, he who recovereth, after the Reversal, shall have an Action of Trespass against the Trespassors: and if the Defendant pleads, there is to such Record, the Plaintiff shall shew the Special Mat∣ter, and maintain his Action. And for the better ap∣prehending the Law on this Point, it is to know, That when any man recovers any Possession or Seizin of Land, in any Action, by Erroneous Judgment, and after∣wards the Judgment is reversed, as is said before; and thereupon the Plaintiff, in the Writ of Errour, shall have a Writ of Restitution, and that Writ reci••es the first re∣covery; and the Reversal of it in the Writ of Errour, is, That the Plaintiff in the Writ of Errour, shall be resto∣red

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to his Possession and Seizin, Una cum exitibus there∣of, from the time of the Judgment, &c. Tibi praecipimus quod cadem A. ad plenariam seizinam tenementor. praed. &c. restitui facias, & per Sacramentum proborum, &c. dilig••nter inquiras ad quantum exitus & proficua tenementor illor. &c. a tempore falsi Judicii &c. usque ad Oct. Sanct. Mich. anno &c. quo die Judicium illu &c. revocat. fuit &c. et qu••li∣ter hoc praecept. &c. in Oct••b. &c. By which it appears, that the Plaintiff, in the Writ of Errour, shall have Re∣stitution against him who recovereth, of all the mean Profits, without any regard by them taken: for the Plain∣tiff, in the Writ of Er••our, cannot have Remedy against a Stranger: and therefore the words of the said Writ command the Sheriff to inquire of the Issues and Profits generally &c. And therefore the Plaintiff, in the Writ of Errour, after the Reversal, shall have any Action of Trespass for a Trespass mean; and therewith agreeth Brian Chief Justice, 4 H 7. 12. a. See Butler and Baker's Case, in the third Part of my Reports, good matter con∣cerning Relations: So as it was Resolved in the Case at Bar, though to some intent the Reversal hath relati∣on; yet to bar the Wife of her Dower by fiction of Law, by the F••ne with Proclamations, and five years past after the Husbands death; when, in truth, she had not cause of Action, nor any Title, so long as the Attainder stood in force, should be to do a Wrong by a fiction in Law, and to bar the Wife, who was a meer stranger, and could have no Relief, till the Attainder was rever∣sed.

As to the other Objection, That the Demandant on the Petition, ought to have an Office found for h••r, It was Resolved, That it needed not in this Case, because the Title of Dower, stood with the Queens Title, and affirm∣ed it. Also, in this Case, the Queen was not intitled by any Office, that the Wife should be driven to traverse it, for then she ought to have had an Office: But in case of Dower, though that Office had been found for the

Queen, which doth not disaffirm the Title of Dower, in such Case the Wife shall have her Petition without Of∣fice. See S••dlers Case, in the Fourth Part of my Re∣ports.

And the Case put on the other side, was utterly denied by the Court; for it was Resolved, That if a man seized of Lands in F••e, take a Wife of eight years of Age, and alien his Lands; and after the Wife attains to the Age of nine years, and afterwards the Husband dyeth, that she shall be endowed; because the Title of Dower being not consummate till the death of the Husband, and there being Marriage, Seizin in Fee, age of 9 years, and the Husbands death, for that cause she shall be endowed; it being sufficient, that the Marriage, Seizin, and Age hap∣pen during the Coverture. So if a man seized of Lands in Fee take a Wife, and after she elopes from her Hus∣band, now she is barrable of her Dower, if during the elopement, the Husband alien; and after the Wife is re∣conciled, she is Dowable: So if a man hath Issue by his Wife, and the Issue dyeth, and afterwards Land discends to the Wife, or she purchase Lands in Fee, and dyes with∣out other Issue, the Husband (for the Issue which he had before the Discent or Purchase) shall be Tenant by the Courtesie. But if a man taketh an Alien to Wife, and afterwards he aliens his Lands, and after that she is made a Denizen, she shall not be endowed; for she was not by her Birth capable of Dower, but by her Denization it began. But in the other Case, there was onely a Tem∣porary Bar, untill such Age or Reconcilement; which being accomplisht, the Temporary Bar ceaseth.

Trin. 44 Eliz. In the Kings-Bench;

Sprat and Heale's Case.

John Sprat Libelled in the Spiritual Court against Wal∣ter Heal, for Substraction of Tythes; the Defendant in

the Spiritual Court, that he had divided the Tythes from the Nine Parts. And then the Plaintiff made Addition to the Libel (in nature of a Replication) viz. That the Defendant divided the Tythes from the Nine Parts, quod praed. the Plaintiff non fatetur sed prorsus diffitetur: yet presently after this pretended division, in fraudem legis, he took and carryed away the same Tythes, and converted them to his own use: and thereupon the Plaintiff ob∣tained Sentence in the Spiritual Court, and to recover thetreble value, according to the Statute 2 Ed. 6. cap. 13. And thereupon Heale made a Surmise, that he had divi∣ded his Tythes, and that the Plaintiff ought to sue in the Spiritual Court for the double value, and at the Common-Law for the treble value.

But it was Resolved by the whole Court, That the said Division mentioned in the Libel, was nnt any Di∣vision within the said Stat. 2 Ed. 6. cap. 13. for that Act provides, That all the King's Subjects henceforth, shall truly and justly without Fraud, divide, set out, yield and pay all manner of other Predial Tythes in their pro∣per Land: So as when he divides them to carry them a∣way, he divides them not justly withont Fraud; and therefore the same is out of the Statute: And where the words of the Statute are, divide, set out, &c. their Predial Tythes, &c. And if any person carry away his Corn and Hay, and other Predial Tythes, &c. And to make an evasion out of these words, this Invention was devised; The Owner of the Corn, by Covin sold his Corn, before severance, to another, who as Servant to the Vendee reaped it, and carryed it away without any Seve∣rance, pretending that neither the Vendo, because he did not carry them away; nor the Vendee, because he had no property in them, should be within that Statute: But it was Resolved, That the Vendor should be charged in that Case with the Penalty of the Statute, for he carry∣eth them away, and hi•• Fraud and Covin shall not help him. See 8 Ed. 3. 290. 9 H. 6. 41. 33 H. 6. 5. But it

was Resolved, That the Plaintiff could not sue in the Spiritual Court for the treble value, but for the double value he might.

Hill. 6 Jac. Regis. In the Common-Pleas,

Neal and Rowses Case.

At a Nisi Prius in London, before my Self this Term, the Case was this: Edward Neal informed upon the Stat. 21 H 8. c 5. Which Plea began Mich. 6 Jac. Rot. 1031. against James Rowse, Commissary and Official within the Archdeaconry of Huntington, in the Diocess of Lincoln; and having Probate of Wills, &c. in the same Archdea∣conry: And that Nicholas N••al, in the 3d year of the Reign of the said King James, made his Testament in Writ••ng, and made the Plaintiff his Executo, and dyed possessed of Goods and Chattels, to the value of 150 l. The D••f••ndant, then Commissary and Official, &c. the 23 Feb. 1605. at the Parish of St. Mary Bow, Testament. praed. proba it &c. ac per manuscujusdam Thomae N••cke, tunc Minist••i ipsius Jacobi Rowse &c. 14 s. 10 d. pro prob••tione &c. Testament. p••aed. de eodem Edwardo, &c. qui tam &c. Colore Officii sui praed. ad tunc ••t ibid. extor∣tive recepit et habuit contra formam Statuti: With this, that the said Edward qui tam, &c. will adde, That the Writing of the said Testament, according to the Rate of a peny for every ten Lines, every Line containing in length ten Inches, non attingebat, to the Sum of 12 s. 4 d. according to the form of the Statute aforesaid, &c. The Defendant pleaded nihil debet; and at the Nisi Prius, the Evidence of two Witnesses was, That the Plaintiff cau∣sed the said Testament, which was in Paper, to be en∣grossed in Parchment; and the Plaintiff offered both to the said Rowse to be proved; who answer'd it should, if his Fees shall be paid him: And the Plaintiff asking

him, What were his Fees? and be wrote them in a Paper, which amounted to 14 s. and 10 d. Whereupon the Plaintiff laid upon the Table 20 s. and desired him to take what was due to him, (all this being in the Offi∣cials house) but he would take nothing there, but ap∣pointed the Plaintiff to come into Court, where he would receive his Fees: And accordingly the Plaintiff coming into Court, and praying to have the said Will proved; the Defendant required the said Nicke to take of him for the Probation, Insinuation, Registring, and Sealing, 14 s. 10 d. and thereupon put the Seal of the Office to the same Parchment, that the Plaintiff brought him, &c.

And it was objected, That this Case was out of the Statute; for thereby, as to this purpose, it is provided, viz. And where the Goods of the Testator, &c. amount a∣bove the value of 40 l. that then the Bishop, nor Ordinary, nor any of his or their Registers, Scribes, Praysors, &c. or any other their Ministers, for the Probation, Insinuation, and Ap∣probation of any Testament, &c. for the Registring, Sealing, Writing, &c. any Inventories, Acquittances, Fines, or any thing concerning the same Probate of Testaments, &c. shall take, &c. but onely four shillings, and not above. Wh••r••of, &c.

And the Defendants Councel objected, That the De∣fendant did not take the 14 s. 10 d. &c. For no Pro∣bate was written upon the Testament it self, nor any Seal put to it, but the Testament was ingress••d in Parchmeat, and the Probate and Seal put to the Transcript, and not the Testament, and so out of the Statute: The Statute extends onely when the Probate and Seal is put to the Testament it self, &c. But I conceived, that the said ta∣king the 14 s. 10 d. in the Case at Bar, was clearly a∣gainst the Statute; for the Act is in the Negative: And if the Executor requires the Testament to be ingrossed in Parchment, he ought to agree with him, that he requires

to do it, as he may. But the Ordinary, Official, &c. ought not to exact any Fee for the same, as due to him, for divers causes.

1. Because the words of the Act are expressed for the Probation, &c. and for the Registring, Scaling, Writing, &c. Which word (Writing) extends expresly to this Case.

2. The words are, (or any thing concerning the same Probate) and when the Seal and Probate is put to the Transcript, the same (without question) concerns the Pro∣bate.

3. Such a Construction would make the Act idle and vain; for if the Ordinary, Official, &c. might take as much as he pleaseth, for the Ingrossing done by his Mi∣nisters, as a due to him, all the purview of the Statute, which is penned so precisely concerning persons, should be all in vain, by that evasion of Transcribing it, as well against the express Letter of the Act, as the intention of it. And the Act ought to be expounded, to suppress Ex∣tortion, which is a great affliction and impoverishing of the Subjects.

4. As this Case is, he annexes the Probate and Seal to the Transcript ingrossed, which the Plaintiff brought him; so as the Case at Bar was with question: And afterwards the Jury found for the Plaintiff. And of such Opinion was Walmesly, Warberton, Daniel, and Foster, Ju∣stices, the next Term in all things: But upon Excepti∣on, in Arrest of Judgment, for not pursuing of the Act, in the Information, Judgment is not yet given, &c.

Hill. 6 Jac. Regis. In the Common-Pleas.

In this Term, a Question was moved to the Court, which was this: If Tenant in Burgage should pay aid to the King, to make his eldest Son Knight. And the

Point rests upon this: If Tenure in Burgage, be a Te∣nure in Socage; for by the antient Common-Law every Tenant in Knights Service, and in Socage, was to give to his Lord a reasonable Ayd, to make his eldest Son a Knight, and to marry his eldest Daughter; and that was uncertain at Common-Law, and also incertain when the same should be paid. And this appears by Glanvil, lib. 9. cap. 8. fol. 70. who wrote in the time of Henry the second, Nihil autem certum statutum & de hujus modi auxil••is dandis vel exigendis, &c. And in the beginning of the Chapter it is called rationabile auxilium, because then it was not certain, but to be moderated by Reason, in re∣spect of Circumstances: The like appears by the Pre∣amble of the Statute, West. 1. 3 Ed. 1. cap. 35. The said Act put those incertainties to a certainty.

1. That for a whole Knights Fee there be taken but 20 s. and of 20 l. Lands holden in Socage 20 s. and of more, more; and of less, less; whereby the Ayd it self became certain.

2. That none might levy such Ayd, to make his Son a Knight, untill his Age of 15 years; nor to marry his Daughter, till her Age of 7 years: And Fleta, who wrote after that Act, calls them rationabilia auxilia, &c. And by the Stat. 25 Ed. 1. where it is provided, That Taxes shall be taken, but by common consent of the Realm, there is an Exception of the Antient Ayds; which is to be intended of these Ayds: But notwithstanding the said Act of West. 1. it was doubted, if the King were bound by it, being not expresly named: And therefore Ed. 3. in the 20 year of his Reign, took ••n Ayd of 40 s. of every Knights Fee, to make the Black Prince Knight, and then nothing of Lands holden in Socage: and to take away all question concerning the same, it was con∣firmed by Parliament, and after 25 Ed. 3 cap. 11. It is Enacted, That reasonable Ayd, to make the Kings eldest Son Knight, and to marry his eldest Daughter, shall be

levyed after the form of the Stat. made thereof; and not in other manner. Now Littleton, lib. 2. cap. 10. fol. 36. b. Burgage Tenure is, where an antient Borough is, where∣of the King is Lord; and those who have Tenements within the Borough, hold of the King, That every Tenant, for his Tenement, ought to pay to the King a certain Rent. And such Tenure, is but Tenure in Socage; and all Socage Land is contributary to Ayd; and therefore a Tenant in Burgage shall be contributary to Ayd.

It appeareth in the Register, fol. 1, 2. in a Writ of Right, Lands held in Knights Service, are said, Quas clamat tenere perservitium unius Fe••di militis. And Socage Lands, Quas clamat per liberum servitium unius cumini, &c. So F. N. B. 82. Rationabile auxilium de militibus et liberis tenentibus; where Militibus distinguisheth Knights Service from Socage, which is called libtris tenen∣tibus. But it appears by the Books of Avowry 26. and 10 H. 6. So Antient Demesne 11. It was Resolved by all the Justices in the Exchequor Chamber, That no Tenure shall pay for a reasonable Ayd, but Tenure by Knights Service, and by Socage; but not by Grand Ser∣geanty, nor no other. And 13 H. 4. 34. agrees to the Case o Grand S••rgeanty. And I conceive, that Petit Sergeanty shall also pay Ayd: for Littleton, lib. 2. cap. 8. fol. 36. sayes, That such a Tenure is but Socage in effect; though Fitzh. N. B. 83. a. avouch the contrary, 13 H. 4. 34. And I conceive, That he who holds a Rent of the King by Knights Service, or in Socage, shall pay Ayd, according to the words in West. 1. cap. 35. And though it was said, that a Tenure in Socage, in servitium Socae, as Littleton saith; and the same cannot be applyed to Houses: To that it was answered, That the Land upon which the Houses are bu••l, or if the House fall down, may be made arable and plowed. See Huntington, Polydor Virgil; and Hollinsheads Chron. fol. 35. 15 H. 4. Ayd was levyed by H. 1. 7. to marry Mawd his eldest Daughter to the

Emperour, viz. 3 l. of every Hide of Land &c. See also, The Grand Customary of Normandy, cap. 35. there is a Chapter of Ayde••. See also the Stat. made 19 H. 7. which beginneth thus: Item Praefati Communes in Par∣liamento praed. existent. ex assensu &c. concesserunt praefat. Regi quand. pecu••iae summam, in loco duorum rationabilium auxilior suae Majestat. de jure debit. &c. See Rot. 30 H. 3. Ex parte Reman. Dom. Th••saur. in scemino, in auxilio nobis concess. ad primogenitam filiam no••••ram maritand. And H. 3. had an Ayd granted by Parliament, Ad Is abellam sororem suam Imperatori. But that was of Benevo∣lence.

Rot. 42 H. 3. ibid. 6. Monstrat. R. Johanne, le Fran∣cois Baro de Scaccario quod cum Dom. Rex non caperet nisi 20 s. de integro Feodo Mil. de auxilio &c. Ibid. in Regno 2 Ed. 1, Rot. 3. de auxilio ad Militiam; Which is meant of Knight: of the Kings Son. Note, If one with••n Age, be in Ward of the King, he shall not be contributary to Ayd; but his Tenants that hold of him shall, as appears by that Record.

Ibid. 30 Ed. 1. Ibid. T. R. 34 E. 1. Ibid. Hill 4 H. 4. Rot. 19. de rationabili auxilio de Will. Dom. Roos. The like M. Rot. 5 H. 4. Rot. 33. Lincoln▪ & Ro••. 34. Lincoln, & Rot. 35 Lincoln, & Tr. R. 5 H. 4. Rot. 2. Kanc. & Rot. 3. Kanc. & Rot. 5. Kanc. See ibid. R. 21 Ed. 3. Rot. Cantab. ••e auxi∣lio adfilium Regis primogenit••m faciend. per Episcopum E∣Eliens. See also, ibid. 20 Ed. 3. Rot. 13 & 14. de aux∣iliendo ad primogenitum filium R••gis Militem faciend. By all which before cited, it appeareth, that Tenure in Burgage is subject to the payment of Ayd.

Hill. 6 Jacob. Regis.

Prohibitions.

Upon Ashwednesday in Feb. 1606. A great Complaint was made by the President of York, to the King, That the

Judges of the Common-Law, had, in Contempt of the Kings Command last Term, granted 50 or 60 Prohibi∣tions out of the Common-Pl••as, to the President and Coun∣cel of York, after the 6th of February, and named 3 in par∣ticular. 1. Between Bell and Thawptes. 2. Another between Snell and Hu••t. 3. And another, in an Infor∣mation of a Riotous Rescue by English Bill, by the Attor∣ney-General, against Christopher Dickenson, one of the She∣riffs of York, and others, in rescuing one William Watson, out of the Custody of the Deputy of one of the Pursey∣vants of the said Councel, who had Arrested the said Wat∣son, by force of a Commission of Rebellion, by the said President and Councel awarded: Which Prohibition, upon the Information, was (as was said) denyed, upon a Motion in the Kings-Bench the last Term; but granted by Us. And the King sent for me, to answer the Complaint; and I onely, all the rest of the Justices being absent, waited upon the King; who, in the presence of Egerton, Lord Chancellor, and others of the Privy-Councel, re∣hearsed to me the Complaint aforesaid. And I percei∣ved well, that the King had thereupon conceived great displeasure against the Judges of the Common-Pleas, but chiefly against Me: To which (I having the Copy of the Complaint sent me by the Lord Treasurer) an∣swered in this manner: That I had made search in the Office of Prothonotaries of the Common-Pleas; and as to the Cases between Bell and Thawpts, and Snell and Huet, no such could be found; but I would not take advantage of a Misprisal: And the truth was, the 6th of February, the Court of Common-Pleas had granted a Prohibition to the President and Councel of York, between Lock Plain∣tiff, and Bell and others Defendants; and that was a Re∣plevin in English was granted by the said President and Councel, which I affirmed was utterly against Law: for at Common-Law no Replevin ought to be made, but by Original Writ directed to the Sheriff: and the Statute

of Marlbridge, cap. 21. and West. 1. cap. 17. authorize the Sheriff to make a Replevin. So 29 Ed. 3. 21. 8 Eliz. Dyer 245. And the King by his Instructions neither had made the President and Councel Sheriffs, nor could grant them Power to make a Replevin against Law; which the Lord Chancellor affirmed for very good Law; and it may well be, we have granted others in the like Case. Another Prohibition, I confess, we have granted between Sir Bethel Knight, now Sheriff of the County of York, as Executor to one Stephenson, who made him and another his Executors, and preferred an English Bill against Chambers, and others, in nature of an Action of the Case, upon a Trover and Conversion of Goods and Chattels in the Testators Life, to the value of 1000 l. And because the other Executor would not joyn with him, he had no remedy at Common-Law; but was forced to pray reme∣dy there in Equity. And I say, the President and Coun∣cel have not any Authority to proceed in that Case, for divers causes.

1. Because there is an express Limitation in their Commission, that they shall not hold Plea between Par∣ty and Party, &c. unless both or one of the Parties, tanta paupertate sunt gravati, that they cannot sue at Common-Law; and in that Case the Plaintiff was a Knight, She∣riff, and man of great quality.

2. Because by that Suit the King was deceived of his Fine, which was 200 l. because the Damages amounted to 4000 l. And that was one of the Causes, that the She∣riff began his Suit there, and not at Common-Law. Ano∣ther Cause was, that their Decrees which they take upon them, are final and uncontroulable, either by Errour, or any other Remedy; which is not so in the Kings Courts, where there are five Judges: for they can deny Justice to none who hath Right; nor give any Judgment, but what is controulable by Errou••, &c. And if we shall not grant Prohibitions, in Cases where they hold Plea

without Authority, then the Subjects shall be wrong∣fully oppressed without Law, and we denyed to do them Justice. And their Ignorance in the Law appeared, by allowing that Suit, viz. That the one Executor had no Remedy at Common Law, because the other would not joyn in Suit with him; whereas every one Learn••d in the Law knows, that Summons and Severance lyeth in any Suit brought as Executors. And this was also affirm∣ed by the Lord Chancellor.

Another Prohibition, I confess, we granted between the L. Wharton, who by English Bill, before the Councel, sued Bank S. Buttermere, and others, for fishing in his se∣veral Fishings in Darwent, in the County of C. in nature of an Action of Trespass at Common-Law, to his Da∣mages of 200 l. and for the Causes before recited; and because the same was meerly determinable at Common-Law, we granted a Prohibition: And that also was allow∣ed by the Lord Chancellor. Then the King asked me the Case of Information upon the Riotous Rescous: To which, I answered, That one exhibited a Bill there, in the nature of an Action of Debt, upon a Mutuatus against Watson, who upon his Oath affirmed, that he had sa∣tisfied the Plaintiff, and owed him nothing: yet because he did not deny the Debt, the Councel Decreed the same against him; And upon that Decree, the Pursuyvant was sent to Arrest the said Watson, who Arrested him; upon which the Rescous was made: And because the Action was in the nature of an Action of D••b••, upon a Mutuatus, where the Defendant at Common Law might have waged his Law, the Prohibition was granted; and that was also affirmed by the Lord Chancellor. Also, I affirmed it was Rescous, because the principal cause be∣longed not to them; but it might be a Riot, yet not punishable by them, but by course of Law, by a Commis∣sion of Oyer and Terminer.

Also, I confess, that we have granted divers Prohibitions to stay Suits there by English Bill, upon penal Statutes, for the manner of prosecution, as well for the Action, Process, &c. as for the Count, is to be pursued, and can∣not be altered: and therefore, without question, the Councel, in such Cases, cannot hold Plea; which was affirmed also by the Lord Chancellor. And I said, no Court of Equity can be Erected at this day without Act of Parl, as was Resolved in Q. Eliz. time in Parots Case; and lately in the Case of the President and Councel of Wales.

And the King was well satisfied with these Reasons, who gave me his Royal Hand, and I departed from thence in his favour.

Pasch. 7 Jac. Regis.

This Term a Question was moved at Sergeants Inne, who, by the Common-Law, ought to repair the Bridges, common Rivers and Sewers, and the High-ways, and by what means they shall be compelled to it; and first of Bridges. And as to them, it is to be known, that of com∣mon right all the Country shall be charged: and there∣with agrees, 10 Ed. 3. 28. b. and the Star. 22 H. 8. cap. 5. was but an affirmance of the Common-Law in that Point. He that hath Toll of Men or Cattel passing over a Bridge, ought to repair the same, when no other is bound by Law to do it, for he hath Toll to that purpose: Et quisentit commodam, sentire debet & onus: and with this agrees 14 Ed. 3. Bar. 276. Also, a man may be bound to repair a Bridge, ratione tenurae, of certain Land, but a particular person cannot be bound by Prescription: for if he have not profit by the same, his Ancestors Act shall not bind him: But an Abbot or Corporation may be charged by Prescription, and may bind their Successors.

Vide 21 E. 4. 28. 27 Ed. 3. 8. 22 Ass. 8. 5 H. 7. 3. Yea•• they shall be compelled, if time out of mind they have re∣paired it, though of Alms; and therewith agrees 10 E. 3. 28. So of a High-way, all the Country ought to repair it; but some may be bound particularly, as in the Case of Bridges. As he who hath Land adjoyning, ought to scour and cleanse the Ditches, next to the way to his Land; and therewith agrees the Book, 8 H. 7. 5. So of a common River, all who have Passage by it, ought to scour and cleanse it, for it is as a common Street; as it is said, 17 Assi. and 37 Ass. 10.

Pasch. 7 Jacobi Regis.

Sir William Reades and Booth's Case.

In the great Case of Forgery in the Star-Chamber, be∣tween Sir William Read Plaintiff, and Roger Booth, and Cuthbert Booth, and others, Defendants; the Case was thus: Roger Booth 38 Eliz. was Convict in that Court of pub∣lishing a Writing under Seal, forged in Sir Thomas Gres∣hams Name, of a Rent charge of 100 l. out of all his Lands, &c. to one Markham for 99 years, dated 21 year of Queen Elizabeth's Reign, knowing it to be forged: And afterwards the said Sir William Read exhibited the said Bill against the said Boothes, and others, for forging another Writing under Seal, dated the 20th of Elizabeth, in the said Sir Thomas Gresham's Name, purporting a Deed of Feoffment of all his Lands (except certain) to Sir Rowland Heyward, and Edward Hoogen and their Heirs, in effect, to the use of Markham the younger, and his Heirs, and for publishing the same, knowing it to be forged, was the Bill exhibited. And upon hearing this Cause this Term, these Doubts were moved upon the Star. 1 Eliz.

1. If one who is Convict of publication of a Deed of eoffment or Rent-charge, knowing the same to be for∣ged,

again at another day forge another Deed of Feoff∣ment or Rent-charge, if he be within the Case of Felony within the A••t: which Doubt ariseth upon these words (est-soons) committed again any of the said Offen∣ces.

2. The second Doubt was, If a man commit two For∣geries, one in 37 Eliz. the other, in 38 Eliz. and he is first convicted of the last, if he may now be impeached for the first.

3. When Roger Booth was Convict in 38 Eliz. and af∣ter is charged with a new Forgery, in 37 Eliz. If the Witnesses moving in truth, that it was forged after the 〈◊〉〈◊〉 Conviction, if the Star-Chamber hath Jurisdiction of 〈◊〉〈◊〉.

4. When Cuthbert Booth, who was never Convict of Forgery before, if in truth the Forgery was done, and so proved in 38 Eliz. If he might be convicted upon this Bill, because the Forgery is alleadged before it was done.

1, 2. To the first and second Doubts, It was resolved by the two Chief Justices, and Chief Baron; That if one be Convict of Forgery, or publishing any Writing concerning Free-hold, &c. within the first Branch, or concerning Interest or Term of Years, &c. in the second Branch, and be convicted, if afterwards he offend, either against the first Branch or second, that the same is Felo∣ny. As if he forge a Writing concerning an Interest for Years within the second Branch, and be convicted; and after he forgeth a Charter of Feoffment within the first Branch, et e converso, that is Felony, by express words of the Act. But if one forge a Writing in 37 Eliz and after he forge another in 38 Eliz. yet it is not Felony, though he forge many Writings one after another; for the Forgery, &c. which is Felony by the Act, ought to be after Conviction, or Condemnation, of a former Wri∣ting.

3. As to the third Doubt, It was Resolved, That the Allegation of the time, by the Plaintiff in the Bill, shall not alter the Offence, but shall give to the Court Juris∣diction: But if it appear, that the Forgery or Publica∣tion was after the Sentence, then the Court shall sur∣cease.

4. As to the last Point, It was Resolved, That the time of the Forgery is not material, if it be committed before the exhibiting the Bill. But if the date of such Writing, supposed to be Forged, had been mistaken, there the De∣fendant could not be condemned of a Deed of another Date.

Pasch. 7 Jac. Regis.

The Case of Sewers.

The Case was, There was a Cawsey or Milstank of Stone in the River of Dee, and in the City of Chester; which Cawsey, before the Reign of King Edward the first, was Erected for the necessary maintenance of cer∣tain Mills at the end of the said Cawsey. And now a certain Decree was made by certain Commissioners of Sewers, for a Breach to be made by ten Poles in length, in the said Cawsey: and if by any Decree of the Com∣missioners, by force of any Statute, any breach may be made in that Cawsey, was the Question: And it was referred, by Letters of the Lords of the Privy-Councel, to the Chief Justices, and Chief Baron; who, upon hearing of Councel Learned, at divers dayes, and good Conside∣ration had of all Statutes of Sewers, and Conferences among themselves, It was Resolved as followeth;

1. That the Stat. of Magna Chart. cap. 23. Quod om∣n••s Kidelli deponantur, &c. extended onely to Kidels, viz. Open Wears for taking Fish: But the first Stat. that ex∣tended to pulling down or abating any Mills, Mill-Stanks, or Cawseyes, was 25 Ed. 3. cap. 4. which appointed onely such to be pulled down, as were Erected in the

Reign of King Edward the first, or after. But by 1 H. 4. cap. 12. upon complaint in Parliament, of great dama∣ges, by inhansing Mills, Mill-stanks, &c. made before Ed∣ward the first's Reign, that Act appoints them to be surveyed; and such as were found to be much inhansed, to be corrected. None of which Acts, extend to the Case in question: for that Cawsey was erected before Edw. 1. and never inhanced since the Erection. And the 12 H. 4. c. 7. confirms all the said Acts. And by the 23 H. 8. c. 5. none of the said Statutes are repealed, as to the Case in question: for thereby the Form and Effect of the Com∣mission of Sewers is appointed, and power given to the Commissioners to survey Walls, &c. Fences, Cawseys, &c. Mills, &c. and to correct, repair, or pull down, &c. as cause requireth, according to their discretions, &c. after the effect of the Statute, made before the 1. of March, 23 H. 8. By which appears, that the Commissioners dis∣cretion was limited, viz. to proceed according to the Sta∣tutes and Ordinances before made, &c. And the said Act provides, That all and every Statute, Act, and Ordi∣nance heretofore made, concerning the Premises, not contrary to this Act, nor repealed, shall stand good, and be effectual for ever. But the said Acts 25 Ed. 3. and 1 H. 4. are not contrary to the said Act, nor repealed: and al∣ways such construction ought to be made, that one part of the Act may agree with another. And, according to this Resolution, We certified the Lords of the Councel, that the said Star. 25 E. 3. & 1 H. 4. remained yet in force; and that the Authority given by the Commission of Sewers, did not extend to Mills, Mill-stanks, Cawseys, &c. erected before Ed. 1. unless they have been inhanced; and then they are not to be subverted, but reformed, by aba∣ting the Inhancement onely.

Trin. 7 Jacobi Regis.

The Case de modo Deci•• andi, and of Prohibitions.

Richard Archbishop of Canterbury, with the Bishops of London, Bath and Wells, and Rochester, divers Doctors of the Civil and Canon-Law; as Dr. Dun, Judge of the Ar∣ches, Dr. Rennet Judge of the Prerogative, Dr. James, Dr. Martin, and others, came and attended the King at White-Hall, the Thursday, Friday, and Saturday, after Easter Term, in the Councel-Chamber; where the Chief Justice, and I my self, Daniel Judge of the Common-Pleas, and Williams Judge of the Kings-Bench, by the King's Command at∣tended also; where the King, assisted with his Privy-Councel, all sitting at the Councel-Table, spake as a most Gracious Soveraign, to this effect: As He would not suffer any Novelties or Innovations in his Courts of Ju∣stice, Ecclesiastical and Temporal; so he would not have any the Laws, which had Judicial Allowances, in the Times of his Predecessors Kings of England to be forgot∣ten. And forasmuch as Contentions between the Tem∣poral and Ecclesiastical Courts, cannot but breed great Inconvenience to the Subjects, especially when the Con∣troversie ariseth upon the Jurisdiction of his Ordinary Courts of Justice; And because he was the Head of Ju∣stice, immediately under God, and knowing what hurt may grow to his Subjects, when the Jurisdiction of his Courts are drawn in question; He thought it concerned him, as a King, to hear the Controversies between the Bishops and Clergy, and the Judges of his Laws of Eng∣land, and to take Order, that the one do not encroach upon the other. And He said, The onely Question then to be disputed was, If a Parson or Vicar of a Parish, sues one of his Parish in the Spiritual Court for Tythes, in Kind, or Layfee; and the Defendant alleadgeth a Cu∣stom or Prescription, de modo Decimandi; if that Custom

or Prescription shall be tryed and determined before the the Judge Ecclesiastical, where the Suit is begun, or a Prohibition lyeth to try the same by the Common-Law. And the King directed, that We who were Judges, should declare the Reasons of our Proceedings, and what Autho∣rities in the Law we had to warrant our Proceedings, in granting Prohibitions in Cases de modo Decimandi. But the Archbishop of Canterbury kneeled before the King, and desired he would hear him, and others, provided to speak in the Case, for the good of the Church of Eng∣land. And the Archbishop inveighed chiefly against two things.

1. That a Modus Decimandi should be tryed by a Jury, because they themselves claim more or less modum Deci∣mandi; so as, in effect, they were Tryers in their own Cause, or in the like Cases.

2. He inveighed much the precipitate and hasty Try∣als by Juries; and after him Dr. Bennet made a large Invection against Prohibitions, in causis Ecclesiasticis; and he made five Reasons, why they should try modum Deci∣mandi.

1. The first and principal was out of the Register, fol. 58. quia non est consonans rationi, quod cognitio accessarii in Curiae Christianitatis imp••diatur ubi cognitio causae principa∣lis ad forem Ecclesiasticum noscitur pe••tinere. And the principal cause is Right of Tythes, and the Plea of Mo∣dus Decimandi sounds in satisfaction of Tythes; and there∣fore the Conuzance of the Original Cause, viz. the Right of Tythes belonging to them, the Conuzance of the Bar of Tythes belonged to them. And whereas it is said in the second Part of my Reports, in the Bishop of Winche∣sters Case; and 8 Ed. 4. 14. that they would not accept of any Plea, in discharge of Tythes, in the Spirituall Court; he said, they would allow such Pleas, and had allowed them, being duly proved before them.

2. There was great inconveniency, that Lay-men should be Tryers of their own Customs, for they shall be Jurors in their own Cause.

3. That the Custom of Modo Decimandi is of Ecclesia∣stical Jurisdiction, for it is a manner of Tything, and all manner of Tything belongs to Ecclesiastical Jurisdiction; and therefore he said, if the Right of Tythes be of Ec∣clesiastical Conuzance, and the Satisfaction also for them of the same Jurisdiction, the same shall be tryed in the Ecclesiastical Court.

4. In the Prohibitions of Modus Decimandi, Averment is taken, that though the Plaintiff in the Prohibition offer to prove Modum Decimandi, the Ecclesiastical Court doth refuse to allow it: but he said they would allow such Plea; and therefore, Cessante causa cessabit et effectus, and no Prohibition shall lye.

5. He said, he can shew many Consultations granted in the Cause, de modo Decimandi, and a Consultation is of greater force then a Prohibition. And Bacon Sollici∣tor General, being (as is said) assigned with the Clergy by the King, said less then Dr. Benn••t; but he vouched, 1 R. 3. 4. the Opinion of Hussey, when the Originall ought to begin in the Spiritual Court, and afterwards a thing cometh in Issue, and is Tryable by our Law, yet it shall be tryed by their Law. See the Register 57, 58. 38 Ed. 3▪ 5. and 38 Ed. 3. 6.

And the Judges made humble Suit to the King, That in regard they perceived his Majesty, in his Princely Wis∣dom, derested Novelties and Innovations, that He vouch∣safe to suffer them to inform him of one Innovation, which they did conceive would tend to hinder the Admi∣nistration of Justice within his Realm.

Your Majesty, for the due Administration of Justice, hath made 14 Judges, to whom you have committed not onely the Administration of ordinary Justice, but crimi∣na Laesae Majestatis: Also, in Parliament, we are called by Writ, to give our Advice and Councel to your Majesty

and the Lords, when we are required. We two Chief Ju∣stices sit in the Star-Chamber, Chancery, Court of Wards, and other High-Courts of Justice; We, in our Circuits, do visit twice in the Year your Realm, and execute Justice according to your Laws: and if We receive any diminu∣tion of such Reverence and Respect in our Places, which our Predecessors had, We shall not be able to do You such acceptable Service as they did. The state of the Questi∣on is not in statu deliberativo, but in statu judiciali; it is not disputed de bono, but de vero, non de lege fienda sed de lege lata: Not to devise or frame new Laws, but to in∣form You what Your Law of England is: And it was ne∣ver seen before, that when the Question is of the Law, that your Judges of the Law have been made Disputants with their Inferiours, that daily plead before them in the several Courts at Westminster. And though we are not afraid to dispute with Mr. Bennet, and Mr. Bacon; yet this Example being primae impressionis, and your M••jesty de∣testing Novelties, We leave it to your Princely Consi∣deration, whether you will permit our answering in hoc statu judiciali. But in obed••ence to your Majesties Com∣mand, We will inform your Majesty touching the said Question, which We and our Predecessors before Us have oftentimes adjudged, upon Judicial Proceedings in your Courts of Justice at Westminster; which Judgments can∣not be reversed or examined for any Errour in Law, if not by a Writ of Errour in a more High and Supream Court. And that this is the antient Law of England, ap∣pears by the Stat. of 4 H. 4. c. 22.

And We being commanded to proceed, all that was said by Us the Judges, was to this effect: That the Tryal de modo Decimandi, ought to be by the Common-Law, by a Jury of Twelve Men, it appears in three Man∣ners:

• 1. By the Common-Law.
• 2. By Acts of Parliament.

3. By infinite Judgments, and Judicial Proceedings, long times past without interruption.

But first, it is to see what is a Modus Decimandi: Now Modus Decimandi is, when Lands, Tenements, or Heredi∣taments, have been given to the Parson and his Succes∣sors, or an Annual certain Sum, or other Profit, alwayes time out of mind, in full Satisfaction and Discharge of all Tythes in kind in such a place: and such manner of Tything is now confessed by the other Party, to be a good Bar of Tythes in Kind.

1. That Modus Decimandi shall be tryed by the Com∣mon-Law; and therefore put that which is the most common Case: That the Lord of the Mannor of Dale prescribes to give to the Parson 40 s. yearly, in full Sa∣tisfaction and Discharge of all Tythes, growing within the said Mannor of Dale, at the Feast of Easter. The Par∣son sues the Lord of the Mannor of Dale for his Tythes, of his Mannor in kind, and he in Bar prescribes ut supra. The Question is, If the Lord of the Mannor of Dale may upon that have a Prohibition; for if the Prohibition lye, then the Ecclesiastical Court ought not to try it.

1. First, The Law of England is divided into Com∣mon-Law, Statute, and Customs; and therefore the Cu∣stoms of England are to be tryed by the Tryal, which the Law of England appoints.

2. Prescriptions by the Law of the Holy Church, and by the Common-Law, differ in the times of Limitation: and therefore Prescriptions and Customs of England, shall be tryed by the Common-Law. See 20 H. 6. f. 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Arch-Deacon of Surrey, and declared, That he and his Successours were seized by the Hands of the Defendant, by Title of Prescription; and the Defendant demanded Judgment, is the Court would hold Jurisdiction between Spiritual Persons, &c. Stone Justice, Be assured, That upon Title of Prescription, we will there hold Jurisdiction.

And upon that, Wilby Chief Justice, gave the Rule, Answer: Upon which it follows, That if a Modus Decimandi which is an Annual sum for Tythes by Prersciption, comes in Debate between Spiritual Persons, that the same shall be tryed here. 32 E. 2. Jurisdiction 26. There was a Vicar who had onely Tythes and Oblations, and an Ab∣bot claimed an Annuity or Pension of him by Prescrip∣tion; and it was adjudged, That the same Prescription, though between Spiritual Persons, shall be tryed here. Vide 22 H. 6. 46. 47.

3. See the Record, 25 H. 3. cited in the Case of Modus Decimandi before; and see Register fol. 38.

4. See the Stat. of Circumspecte agatis, Decimae debitae, seu consuctae; which proves that Tythes in kind, and a Mo∣dus by Custom, &c.

5. 8 E. 4. 14. and F. N. B. 41. g. A Prohibition lyes for Lands given in discharge of Tythes, 28 E. 3. 97. a. There was a Suit for Tythes, and a Prohibition lyes.

6. 7 E. 6. 79. If Tythes are sold for Money; by the Sale, the Things Spiritual are made Temporal: And so in the Case de modo Decimandi, 42 E. 3. 12. a∣grees.

7. 22 E. 3. 2. Because any Appropriation is mixed with the Temporalty; otherwise, of that which is meer Temporal. So it is of reall Composi••ion, where the Pa∣tron ought to joyn. Vid. 11 H. 4. 85.

2. Secondly, By Acts of Parliament.

1. The said Act of Circumspecte agatis, that gives power to the Ecclesiastical Judge, to sue for Tythes first due in Kind▪ or by Custom, viz. Modus Decimandi. So as by that Act, though the Yearly Sum soundeth in the Temporalty, which was paid by Custom, in discharge of Tythes; yet because the same comes in the place of Tythes, and by Constitution, the Tythes are changed into Money, and the Parson hath not any remedy for the same, which is the Modus Decimandi at the Common-Law. For that

cause the Act is clear, that the same was a Doubt at the Common-Law. And the Stat. of Articuli Cleri, cap. 1. If that corporal punishment be changed into poenam pecu∣niariam; for that Pain, Suit lyes in the Spiritual Court: For which, see Mich. 8 H. 3. Rot. 6. in Thesaur. And by the 27 H. 8. cap. 20. It is Enacted, That all Sub∣jects of the Realm, according to the Ecclesiastical Law, and after the laudable Usages and Custom of the Parish, &c. shall yield and pay his Tythes, &c. and for substra∣ction thereof, may, by due process, &c. compell him to yield the Duties: and with that, in effect, agrees 32 H. 8. c. 7. By the 2 Ed. 3. c. 13. it is Enacted, That all the Kings Subjects shall henceforth truly and justly, with∣out Fraud, &c. divide &c. and pay all their Predial Tythes in their proper kind as they rise, &c. And always, when an Act of Parl. commands or prohibits any Court, be it Spiritual or Temporal, to do any thing Spiritual or Tem∣poral, if the Stat. be not obtained, a Prohibition lyes; as upon the Stat. de artic. super chart. cap. 4. Quod communio Placita non tenentur in Scaccario. A Prohibition lyes to the Court of Exchequer, if the Barons hold a common Plea there; as appears in the Register 187. b. So upon the Stat. West. 2. Quod inquisitio••••es quae magnae sunt examina∣tionis non capiantur in Patria. A Prohibition lyes to the Justices of Nisi Prius. So upon Articuli super chartas, cap. 7. to the Constable af Dover, Regist. 185. So upon the same Stat. cap. 3. to the Steward and Marshal of the Houshold, 185. and yet no Prohibition is given by ex∣press words, in any of these Statutes. So upon the Statutes 13 R. 2. c. 3. 15 R. 2. c. 2. 2 H. 4. c. 11. a Prohibition lyes to the Admiralty Court. So upon West. 2. c. 43. against Hospitals and Templers, Regist. 39. a. So upon the Stat. de Prohibitione regia, a Prohibition lyes. So upon the Stat. 2. H. 5. c. 3. and upon that Stat. 4 E. 4. 37. the Case was; Peirce Peckham took Letters of Administration, of the Goods of Rose Brown, of the Bishop of London: afterwards T. T. sued to Thomas Archbishop of Canterbury, to have Ad∣ministration

committed to him, because Rose Brown had Goods in his Diocess, and they were granted to him. After∣ward T. T. Libelled in the Court of the Arches against Peirce Peckham, to repeal his Administration; and Peirce Peckham, according to the Stat. prayed a Copy to the Li∣bel, and could not have it; and thereupon he sued a Pro∣hibition, and upon that an Attachment. And there Catesby Sergeant moved, that a Prohibition did not lye for two Causes.

1. The Statute says, that the Libel shall be deliver'd, but not that the Plea shall surcease.

2. The Statute is not intended of Matter meerly Spi∣ritual: And there Danby Chief Justice; If you will not deliver the L••bel, according to the Statute, you do wrong, which wrong is a Temporal matter, and punishable at the Common-Law, and therefore the party shall have a special Pro∣hibition. And always after the said Act, in every Term, throughout the Reigns of Ed. 6. Q. Mary, and Q. Eliz. to this day, Prohibitions have been granted in Modo Deci∣mando, and Judgments given upon many of them, without any contradiction; and accordingly all the Judges Re∣solved, 7 Ed. 6. Dyer 79. Et contemporanea expositio est optima et fortissima in lege, et minime mutanda sunt quae certam habuerunt interpretationem.

1. As to the first, Objectio, That the Plea of Modus Decimandi, is but accessary to the Right of Tythes; It was Resolved, That the same was of no force, for three Causes:

1. In this Case, admitting there is a Modus Decima••∣di, then by the Custom; and by the Act 2. E. 6. and the other Acts, the Tythes in Kind are extinct and discharg∣ed; for one and the same Land cannot be subject to two manner of Tythes; but the Modus Decimandi is all the Tythe with which the Land is chargeable: and it shall be intended, that the Modus Decimandi began at first by reall Composition: So as in this Case, there is neither

Principal. nor Accessary, but an Identity of the same things.

2. The Stat. 2 Ed. 6. being a Prohibition in it self, and that in the Negative; If the Ecclesiastical Judge doth against it, a Prohibition lyes; as appeareth clearly be∣fore.

3. Though the Rule be general, yet it appears by the Register it self, that a Modus Decimandi is out of it: for there is a Prohibition, in causa modi Decimandi, when Lands are given in satisfaction of the Tythes.

2. As to the second Objection, It was Answered and Resolved, That that was from, or out of the Question; for status Quaestionis non est deliberativussed judicialis: for convenient, or inconvenient, is not the Question, but what the Law is.

3. As to the third Objection, it was answered and re∣solved; First, That satisfactio pecuniaria of it self, is Tem∣poral: But because the Parson hath not remedy, pro modo Decimandi, at Common; by force of the Acts cited before he might sue, pro modo Decimandi, in the Ecclesia∣stical Court: But that proves not, That if he sue for Tythes in Kind, which are utterly extinct, &c. that upon the Plea de modo Decimandi, that a Prohibition should not lye: for the contrary appears, without all question, by what hath been said before: See also 12 H. 7. 24. b. 39 Ed. 3. 22 E. 4. Consultation.

As to the Objection, That Averment is taken of the Refusal of the Plea, of Modus Decimandi; It was answer∣ed and Resolved, That the same is of no force, for divers Causes.

1. It is onely to inforce the Contempt.

2. If the Spiritual Court ought to have the Tryal, de modo Decimandi, then the refusing to accept such a Plea, should give cause of Appeal not of Prohibition.

3. From the beginning of the Law, no Issue was ever taken upon the Refusal of the Plea, in causa modi Deci∣mandi,

nor any Consultation granted to them; because they did not refuse, but allow the Plea.

4. The Refusal is no part of the matter issuable or ma∣terial in the Plea; and therefore the Modus Decimandi is proved by two Witnesses, according to the Stat. 2 E. 6. cap. 13. and not the Refusal; which proves, the Modus Decimandi is onely the Matter of Suggestion, not the Re∣fusal.

5. All the said five Matters of discharge of Tythes, mentioned in the said Act of 2 Ed. 6. ought to be proved by two Witnesses, and so have been always, since the ma∣king of the said Act. And therefore it clearly inten∣ded, that Prohibitions should be granted in such Ca∣ses.

6. Though they would allow, bona fide de modo Deci∣mandi, without Refusal; yet if the Parson sue there for Tythes in Kind, when the Modus is proved, (the same be∣ing expresly forbidden by that Act 2 Ed. 6. 13.) a Prohi∣bition lyes, though the Modus be Spiritual; as appears by the Book, 4 E. 4. 37.

Afterwards, the third day of the Debate of this Case before the King, Dr. Bennet, and Dr. Martin, had reserved divers Consultations granted in causa modi Decimandi, thinking they might work upon the King's Opinion: and thereupon they said, That Consultations were the Judgments of Courts had upon Deliberations; whereas Prohibitions were onely granted upon Surmises. And they shewed 4 Presidents.

1. One, where three joyntly sued a Prohibition, in the Case of modo Decimandi; and the Consultation saith, Pro co quod suggestio materiaque in eodem content a minus suffici∣ens in lege existit, &c.

2. Another, in causa modi Decimandi, to be paid to the Parson or Vicar.

3. Where the Parson sued for Tythes in Kind, and the Defendant alleadged, modus Decimandi, to be paid to the Vicar.

4. Where the Parson Libelled for Tythe-Wooll, and the Defendant alleadged a Custom to reap Corn, and make it into Sheaves, and set forth the Tenth Sheave at his Charges: and so of Hay, to sever it from the Nine Cocks at his Charge, in full satisfaction of the Tythes of the Corn, Hay, and Wooll.

To which I answer'd, and humbly defir'd the King to observe, these were reserved for the last and center-point of their Proof. And herein these things may be obser∣ved,

1. That the Kings Courts do them Justice, when with their Consciences and Oaths they can.

2. That all the said Cases are clear, in the Judgment of those who are Learned in the Laws, that Consultation ought by the Law to be granted.

1. For as to the first President, the Case upon their own shewing, is, Three Persons joyned in one Prohibition, for three several parcels of Land, each having a several sort of Tything; and their Interests being several, they could not joyn; and therefore a Consultation was grant∣ed.

2. To the second, the manner of Tything was al∣leadged to be paid to the Parson or Vicar, which is un∣certain.

3. To the third, The Modus never came in Debate, but whether the Tythes did belong to the Parson or Vi∣car: which being between two Spiritual Persons, the Ec∣clesiastical Court shall have Jurisdiction; and therewith agrees 38 E. 3. 6.

4. To the last, The same was upon the matter of a Custom of a Modus Decimandi for Wooll: for to pay the Tythe of Corn or Hay in Kind, in satisfaction of Corn, Hay, and Wooll, cannot be a satisfaction for the Wooll: for the other two were due of common right.

The Bishop of London answer'd, That the words of the Consultation were, Quod suggestio praedicta mattriaque in

eadem cohtenta minus sufficiens in lege existit, &c. So as ma∣teria cannot be refer••ed to Form, and therefore it ought to extend to the Mo••us Decimandi.

To which I answer'd, That when the Matter is insuffi∣ciently or uncertainly alleadged, the Matter it self faileth; and though the Matter be in truth sufficient, yet if it were insufficiently alleadged, the Plea wanteth matter. Then the Lord Treasurer sa••d, he wondered they would produce things that made more against them, then any thing had been said.

And when the King relyed, upon the Prohibition in the Register, when Land is given in discharge of Tythes, the Lord Chancellor said, That was not like this Case; For there by the Gift of the Land, the Tythes were dis∣charged; but in the Case de modo Decimandi, an Annual Sum is paid; yet the Land remains charged, and is to be discharged by Plea, de modo Decim••ndi. All which I utter∣ly denied: For the Land was as absolutely discharged of the Tythes, in casu de modo Decimandi, as where Lands are given. All which the King heard with patience, and the Chancellor answer'd no more.

After the King, with all his Councel, had for 3 dayes together, heard the Allegations on both sides, he said, He would maintain the Laws of England, and that his Judg∣es should have as great respect from all his Subjects, as their Predecessors. And for the Matter, he said, for any thing had been said on the Clergies part, he was not sa∣tisfied; and advised Us the Judges to confer among our selves, and that nothing be encroached in the Ecclesia∣stical Jurisd••ction, and they to keep within their Juris∣diction. And this was the end of these three dayes Con∣sultation.

Note, Dr. Bennet, in his Discourse, inveighed much against the Opinion, 8 E. 4. 14. and, in my Reports, in Wrights Case, That the Ecclesiastical Judge would not al∣low a Modus Decimandi; and said, that was the Mistery

of Iniqui••y, and they would allow it. The King asked for what cause it was so said in the said Books. To which I answer'd, That it appears in Linwood, who was Dean of the Arches, and a Profound Canonist, who wrote in Henry the Sixth's time, in his Title, De decimis cap: Quoniam propter &c. fol. 139. b. Quod decimae soluantur abs{que} ulla diminutione. And in the Gloss it is said, Quod consuetudo de non Decimando aut de non bene decimando non valet. And that being written by so great a Canonist, was the cause of the said Saying in 8 E. 4. that they would not allow the said Plea de modo decimandi. And it seemed to the King, that that Book was a good cause for them in Ed∣ward the Fourth's time, to say as they had said. But I said, I did not rely thereon, but on the Grounds afore∣said.

Lastly, The King said, that the High Commission ought not to meddle with any thing, but that which is enormous, and which the Law cannot punish; as Heresie, Schism, Incest, and the like great Offences: And the King thought that two High-Commissions, for either Pro∣vince one, should be sufficient for all England, and no more.

Mich. 39 & 40 Eliz. In the Kings-Bench;

Bedel and Sherman's Case.

Mich. 39 & 40 Eliz. Which is entred, Mich. 40 Eliz•• in the Common-Pleas, Rot. 699. Cantabr. the Case was this: Robert Bedel Gent. and Sarah his Wife, Farmers of the Rectory of Litlington, in the County of Cambridge, brought an Action of Debt against John Sherman, in custo∣dia mariscalli, &c. and demanded 550 l. and declared, that the Master and Fellows of Clare-Hall in Cambridge, were ieized of the said Rectory in Fee, in right of the said Colledge; and the 10 Jun. 29 Eliz. by Indenture

d••nised to Christopher Phes••nt the said Rectory for 21 years, rendring 17 l. 15 s. 5 d. and reserving Rent-corn, according to the Statute, &c. which Rent was the antient Rent; who entred, and was possessed, and assigned all his Interest to one Matthew Bats, who made his last W••ll, and made Sarah his Wife Executrix, and dyed. Sarah proved the Will and entred, and was thereof possessed as Execu∣trix, and took to Husband the said Robert Be••el; by force whereof, hey in right of the said Sarah entred, and were possessed; and the Defendant was th••n Tenant, and seized for his life of 300 Acres of Arable Lands, in Litlington aforesaid, which ought to pay Tythes to the Rector of Litlington, and in 38 Eliz. the Defendant S••minavit grano, 200 Acres pa••c. ••. &c. the Tythes whereof amount∣ed to 150 l. And the Defendant did not set forth the same from the Nine Parts, but carryed them away, con∣trary to the Statute 2 E 6 &c. The Defendant pleaded, Nihil debet. And the Jury ••ound, that the Defendant did owe 55 l. and to th•• rest they found Nihil debet: And in Arrest of Judgment, divers Matters were moved:

1. That Grano Seminata is too general, and it ought to be expressed, with what kind of Grain the same was sow∣ed.

2. It was moved, If the Parson ought to have the treble value, the Forfeiture being ••xoresly limited to none by the Act. or that the same be••ong to the Queen.

3. If the same belong to the Parson, if he ought to sue for it in the Ecclesiastical Court, or in the King's Tempo∣ral Court.

4. If the Husband and Wife should joyn in the Acti∣on, or the Husband alone; and upon solemn Argu∣ment at the Barre and Bench, Judgment was affir∣med.

Trin. 7 Jac. Regis. In the Court of Wards;

John Bayley's Case.

It was found by Writ of Dien clausit extremum, that the said John Bayley was seized of a Messuage, and of and in the 4th part of one Acre of Land, late parcel of the Demesne Lands of the M••nnor of Newton in the County of Hereford, in his Den••esne as of Free, and found the other Points of the Writ; and it was holden by the two Chief Justices, and the Chief Baron.

1. That M••ss••agium vel Tenementum is uncertain; for Tenementum is nomen collectivum, and may contain Land, or any thing that is holden.

2. It was holden, That it was void for the whole, be∣cause no Town is mentioned in the Office, where the M••ssuage or Tenement, &c. lyeth: and it was holden, that no melius inquirendum shall issue forth, because the whole Office is incertain and void.

Trin. 7 Jac. Regis. In the Court of Wards.

The Attorney of the Court of Wards moved the two Chief Justices, and the Chief Baron, in this Case: A man seized of Lands in Fee-simple, covenants for the advancement of his Son, and his Name, Blood, and Po∣sterity, that he will stand seized of them to the use of himself for life, and after to the use of his eldest Son, and to such Woman as he shall marry, and the Heir∣males of the body of the Son, and afterwards the Father dyeth, and after the Son takes a Wife and dyeth; if the Wife shall take an Estate for Life. And it was Resolved, by the said two Chief Justices, and Chief Baron, That the Wife should take well enough; being within the

consideration, which was for the advancement of his Po∣sterity; and without a Wife the Son cannot have Poste∣rity. Secondly, It was Resolved, that the Estate of the Son shall support the use to the Defendant; and when the Contingent happeneth, the Estate of the Son shall be changed, according to the Limitation, viz. to the Son and the Woman, and the Heirs of the Body of the Son. And so it was Resolved in the Kings-Bench, by Popham Chief Justice, and the whole Court, in Sheffields Case, in Q. Elizabeths time.

Trin. 7 Jac. Regis. In the Court of Wards:

Spary's Case.

John Spary seized in Fee, in the Right of his Wife, of Lands holden by Knight-service, had Issue by her, and 22 Dec. 9 Eliz. alienated to Edward Lord Stafford: The Wife dyed, the Issue of full age; the Alienee holds the Lands. And 10 years after the Fathers death, and 12 years after the Mothers, Office is found, 7 Jac. finding all the special Matter after the Mothers death. The Question was; Whether the mean Profits are to be answer'd to the King: And it was Resolved, by the two Chief Justices, and Chief Baron, that the King should have the mean Profits, because the Alienee was in by Title: and untill Entry, the Heir has no Remedy for the mean Profits, but that the King might seize and make Livery, because the Entry of the Heir is lawful by the Stat. 32 H. 8.

Trin. 7 Jac. Regis. In the Court of Wards.

It was found by force of a Mandamus at Kendal in West∣merland, 21 Dec. 6 Jac. that George Earl of Cumberland, long before his death, was seized in Tail to him, and to

the Heirs-male of his body, of the Castles and Mannors of Browham, Appl••by, &c. the remainder to Sir Ingram Clifford, with divers Remainders in Tail; the remainder to the right Heirs of Henry Earl of Cumberland, Father of the said George: and that the said George Earl so seized, by Fine and Recovery, conveyed them to the use of him∣self, and Margaret his Wife, for their Lives, for the Joyn∣ture of Margaret; and after, to the Heir-males of the body of George Earl of Cumberland; and for want of such Issue, to the use of Francis, now Earl of Cumberland, and the Heir-males of his body; and for want of such Issue, to the use of the right Heirs of the said George: And af∣ter, by another Indenture, conveyed the Fee-simple to Francis, Earl. By force of which, and of the Statute of Uses, they were seized accordingly; and afterwards, the 30 of Octob. 3 Jac. George Earl of Cumberland dies, with∣out Heirs male of his body, &c. And found further, that Margaret, Countess of Cumberland, that now is, was alive, and took the profits of the Premisses, from the death of the said George, Earl, till the taking the Inquisition; and further found the other Points of the Writ.

1. And first, it was objected, Here was no dying sei∣zed found by Office, and therefore the Office shall be insufficient: But to that, it was Resolved, That by this Office the King was not intitled by the Common-Law; for then a dying seized was necessary: But this Office is to be maintained upon the Stat. 32 and 34 H. 8. by force of which no dying seized is necessary; and so it was Re∣solved in Vincents Case, Anno 23 Eliz.

2. The second Objection was, It doth not appear that the Wives Estate continued in her till the Earles death: for the Husband and Wife had aliened the same to ano∣ther, and then no primer seizin shall be, as is agreed in Binghams Case. And to that it was Resolved, That the Office was sufficient, prima facie, for the King, because it is a thing collateral, and no point of the Writ: And if

such Alienation be, the same shall come in of the other part of the Alienee, by a Monstrans de droit. And the Case at Bar is a stronger Case, because it is found, the Coun∣cess took the Profits from the death of George the Earl, till the finding the Office.

Trin. 7 Jac. Regis. In the Court of Wards;

Wills Case.

Henry Wills seized of the 4th Part of the Mannor of Wryland, in the County of D••von, holden of Q. Eliz. i•• So∣cage Tenure in capite, of the said 4••h part, enfeoffed Za∣thary Irish, and others, and their Heirs, to the use of the said Henry for his Life; and after his Dec••ase to Thomas Wills his second Son in Tail, and after to the use of Rich∣ard Wills, his youngest Son in Tail; and after the said Henry so seized as aforesaid, dyed. All this Matter is found by Office. And the Question was, If the King ought to have primer seizin in this Case, that Livery and Ouster le mayne should be sued by the Statutes of the 32 and 34 H. 8. And it was Resolved by the two Chief Justices, and the Chief Baron, that not; if in this Case by the Com∣mon-Law no Livery or Ouster le main shall be sued, and that was agreed by them all, by the experience and cou••se of the course. See 21 Eliz. Dyer 362. and 4 Eliz. Dyer 213.

And two Presidents were sh••wed, which were Decreed in the same Court, by the Advice of the Justices, Assist∣ants to the Court.

One in Trin. 16 Eliz. Thomas Stavely enfeoffed, William Strelley and Thomas Law, of the Mannor of Ryndly in Not∣tingh ••shire, on condition, that they re-enfeoffe the Feof∣for and his Wife for their Lives; the remainder to Thomas Stavely, S••n and Heir apparent of the Feoffer in Fee: Which Mannor was holden of Q. Elizabeth, in Socage

Tenure in capite; And it was Resolved, That no Livery or Ouster le maine, shall be sued in such Case, because of the saving of the Stat. 32 H. 8. The words whereof are, Saving &c. to the King &c. all his Right &c. of primer seizin, and relief &c. for Tenure in Socage, or of the na∣ture of Tenure in Socage in chief, as heretofore hath bin used: But there was no Custom before the Act for the King to have primer seizin, &c.

Another President was in Pasch. 37 Eliz. in the Book of Orders, fol. 444. where the Case was, That William Allet was seized of certain Lands in Pitsey, called Lund∣sey, holden of the Queen in Socage Tenure in chief; and by Deed covenanted to stand seized to the use of his wife for life, and afterwards to the use of Richard his youn∣ger Son in Fee, and dyed, and all was found by Office; and it was Resolved ut supra. But the Doubt o•• the Case at Bar was, because Henry the Feoffor had a Reversion in Fee, which descended to the said William his eldest Son.

Trin. 7 Jacobi Regis.

The Case of the Admiralty.

A B••ll was preferred in the Star-Chamber against Sir Richard Hawkins, Vice-Admiral of the County of De∣von, and was charged, that one William Hull, and others, were notorious Pyrates upon the High Seas, and shewed in certain what Pyracy they had committed: That the said Sir Richard Hawkins knowing the same, did receive them, and abet, & comfort them, and for Bribes suffered them to be discharged: And what Offence that was, the Court referred to the consideration of the two Chief Ju∣stices, and Chief Baron, who heard Councel of both sides divers days at Sergeants Inne: And it was Resolved by them,

1. That the Admirals, by the Common-Law, ought not to meddle with any thing done within the Realm, but onely with things done upon the Sea: and that ap∣peareth fully by the 13 R. 2. cap. 5. and therewith agrees 2 H. 4. c. 11. and 15 H. 2. c. 3. So also, 2 H. 5. c. 6. 5 Eliz. c. 5. and this agrees with Stamf. fol. 51. 8 Ed. 2. Coron. 399. See Plo. Com. 37 b. 2 R. 3. 12. 30 H. 6. 6. by Pri∣soit.

2. It was Resolved, That the Statutes are to be in∣tended of a Power to hold Plea, not of a Power to award Execution: for notwithstanding the said Statutes, the Judge of the Admiralty may do Execution within the Body of the County: And therefore 19 H. 6. 7. the Case was W. T. at Southwark, affirmed a Plaint of Trespass in the Admiralty against J. B. of a Trespass done upon the High-Sea: Whereupon J. B. was cited to appear at the common day next ensuing; at which day, the said J. B. made default: And according to the usage of the Court, the said J. B. was amerced to 20 Marks: Whereupon Command was made to P. as Minister of the said Court, to take the Goods of the said J. B. to make agreement with the aforesaid W. T. by force of which, he, for the said 20 Marks, took 5 Cowes, and 100 Sheep, in Execution for the said Money, in the County of Ieicester. And there it is holden by Newton, and the whole Court, That the Statutes restrain the power of the Court of Admiralty, to hold Plea of a thing done within the body of the County; but they do not restrain the Execution of the same Court to be served upon the Lands. In which Case, these Points were Resolved,

1. Though the Court of Admiralty is not a Court of Record (see Brooks Error. 77. acc.) yet by Custom of the Court they may amerce the Defendant for his default, by their discretion.

2. That they may make Execution for the same, of the Goods of the Defendant, in corpore Comitatus; and if he have not Goods, may arrest his Body.

But the great question between them was, If a man commit Pyracy upon the Sea, and one knowing thereof, receive and comfort the Defendant in the Body of the County, if the Admiral, and other the Commissioners by the Act 28 H. 8. cap. 16. may proceed by Indictment and Conviction against the Receiver and Abetter, the Offence of the Accessary having his beginning within the Body of the County. And it was Resolved by them, That such a Receiver and an Abetter, by the Common-Law, could not be indicted and convicted; because the Common-Law cannot take Cognizance of the Original Offence, being done out of the Jurisdiction of the Common-Law; and where it cannot punish the Principal, it cannot pu∣nish the Accessary: And therefore Coke Chief Justice re∣ported to them a Case which was in Suffolk, 28 Eliz. where Butler and others, upon the Sea, next to the Town of Iaystoff, robbed divers of the Queens Subjects of their Goods, which they brought into Norfolk, and there were apprehended and brought before Me, then a Ju∣stice of Peace in the same County, and upon Examinati∣on, they confessed a cruel and barbarous Pyracy, and that the Goods then in their Custody, were part of the Goods which they had so robbed: And I was of Opi∣nion, that in that Case it could not be Felony punish∣able by the Common-Law, because the Original Act was not offence, whereof the Common-Law taketh know∣ledge; and then the bringing them into the County, could not make the same Felony punishable by our Law: Yet I committed them to the Gaol, untill the coming of the Justices of the Assizes: And at the next Assizes, the Opinion of Wray Chief Justice, and Perian Justices of Assize, was, agreeing with Me ut supra: and thereupon they were committed to Sir Robert Southwel, then Vice-Admiral for those Countie••: and this, in effect, agrees with Lacies Case: which see in my Reports cited in Bing∣ham's Case, 2 Rep. 93. and in Constables Case, C. 5. Rep. 107.

See, Pyracy was F••lony, 40 Ass. 25. by Schard, where a Captain of a Ship, with some English-men, robb'd the Kings Subjects upon the High Seas; and the saith, 'twas Felony in the Norman Captain, and Treason in the Eng∣lish-men, which is to be understood of Petit-Treason: and therefore in that Case, the Pyrates being taken, the Nor∣man Captain was hang'd, and the English drawn &c. hang'd; as appears by the same Book. See Stamford 10.

Trin. 7 Jac. Regis; In the Common-Pleas,

Pettus and Godsalve's Case.

In a Fine levyed, Trinity Term, Anno quinto of this King, between John Pettus Esq; Plaintiff, and Richard Godsalve, and others, Deforceants of the Mannor of Ca∣stre, &c. in Norfolk, where in the ••hird Proclamation, upon the Foot of the Fine, the said Proclamation is said to be made in the sixth year of the King that now is, which ought to have been Anno quinto: And the fourth Proclamation is altogether left out; because upon view of the Proclamations upon Dorsis upon Record, not Finis ejusdem Termini per Justiciarios, remaining with the Chi∣rographer, &c. it appeareth, the said Proclamations were duly made: therefore it was adjudged, that the Errours aforesaid should be amended and made to agree, as well with the Pr••clamation, upon Record of the Fine, and Entry of the Book, as with the other Proclamations in Dorsis, &c. And this was done, upon the Motion of Haugh∣ton Sergeant.

Mich. 7 Jac. Regis. In the Court of Wards,

Samme's Case.

John Samme's being seized of Grany Mead, by Copy of Court-Roll, of the Mannor of Tellesham the Great; of

which Sir Thomas Beckingham, &c. and held the same of the King by Knights Service in capite: Sir Thomas by Deed indented, dated 22 Decemb. 1 Jacobi, between him of the one part, and John Sammes and George Sammes. Son and Heir of John, on the other part, did bargain, sell, en∣feoffe, &c. to John Sammes, the said Mead, call••d Grany Mead, to hold to the said John Sammes, and George Sams, and their Heirs and Assigns, to the onely use of the said John and George, and their Heirs and Assigns for ever: and Sir Thomas, by the same Indenture, covenants, to make further Assurance to the said John and George, &c. and Livery and Seizin was deliver'd accordingly.

John Sammes the Father dyeth, George Sammes his Son and Heir within Age; the Question was, Whether Geo. Sammes should be in Ward to the King, or no: And in this Case three Points were Resolved,

1. Forasmuch, as George was not named in the Premis∣ses, he cannot take by the Habendum; and the Livery, according to the Indenture, gives nothing to George, it being to him as void: but though the Feoffment be good onely to John and his Heirs, yet the use limited to John and George, and their Heirs, is good.

2. If the Estate had been conveyed to John and his Heirs, by the Release, &c. as it may well be to a Tenant by Copy of Court Roll, the use limited to them is good.

3. But the third was of greater doubt, If in this Case the Father and Son were Joint-Tenants, or Tenants in common: And it was Resolved, That they were Joint-Tenants, and that the Son in the Case at Bar should have the said Grange by the Survivor: for if at the Com∣mon-Law A. had been enfeoffed, to the use of him & B. and their Heirs, though that he was onely seized of the Land, the use was jointly to A. and B. for a use shall not be su∣spended or extinct by a sole Seizin, or joint Seizin of the Land: and therefore, if A. and B. be enfeoffed to the use

of A. and his Heirs; And A. dyeth, the entire use shall descend to his Heirs; as appears 13 H. 7. 6. in Stoner's Case; and by the Statute of 27 H. 8. cap. 10. Of Uses.

And when it was said, that the Estate of the Land which the Father hath in it, as to the moiety of the use, which he himself hath, shall not be devested out of him. To that it was Answered and Resolved, That, that shall well be: for if a man make a Feoffment in Fee to one, to the use of him and the Heirs of his body, in this Case, for the benefit of the Issue, the Statute of Uses devests the Estate vested in him by Common-Law, and executes the same in himself by force of the Statute: And it is to be known, that an Use of Land (which is but a pernency of Profits) is no new thing, but part of that which the Owner of the Land had: and therefore if Tenant in Borough-English, or a man seized on the part of his Mother, make a Feoffment to another without consideration, the youn∣ger Son in the one case, and the Heir, on the part of the Mother, on the other, shall have the use, as they should have the Land it self, if no Feoffment had been made; as it is holden 5 E. 4. 7. See 4 and 5 P. and M. Dyer 163. See Fenwick and Milford's Case, Trin. 31 Eliz. So in 28 H. 8. Dyer 11. the Lord Rosses Case, 13 H. 7. 6. by But∣ler.

So in the Case at Bar, the Use limited to the Feoffee, and another, is not any new thing, but the pernancy of the old profits of the Land, which may well be limited to the Feoffee and another jointly. But if the use had been onely limited to the Feoffee and his Heirs there, because there is not any Limitation to anothers person, nec in praesenti nec in futuro, he shall be in by force of the Feoff∣ment.

And it was Resolved, That Joint-Tenants might be seized to an use, though they come to it at several times: as if a man make a Feoffment in Fee to the use of him∣self, and to such a Woman which he shall after marry,

for term of their lives, or in tail, or in fee; in this Case, if he marry a Wife after, she shall take jointly with him, though they take the use at several times. See 17 Eliz. Dyer 340. but otherwise it is of Estates, which pass by the Common-Law; as 24 Ed. 3. Joynder in Action 10. If a Grant be made by Deed to one man for life, the remain∣der to the right Heirs of A. and B. in Fee, and A. hath Issue and dyeth, and afterwards B. hath Issue and dyeth, and then Tenant for Life dyeth; in that case, the Heirs of A. and B. are not Joynt-Tenants; because by the death of A. the remainder, as to one moiety, vested in his Heir, and by the death of B. the other moiety vested in his Heir at several times.

And upon the whole matter, it was Resolved, That be∣cause in the principal Use, the Father and Son were Joint-Tenants by the Original Purchase, that the Sonne having the Land by Survivor, should not be in Ward, and accordingly it was so Decreed.

Pasch. 39 Eliz. Rot. 233. In the Kings-Bench,

Collins and Harding's Case.

The Case was; A man seized of Lands in Fee; and also of Lands, by Copy of Court-Roll in Fee, according to the Custom of the Mannor, made one intire Demise of the Lands in Fee, and of the Lands holden by Copy, according to the Custom to Harding for years, rendring one intire Rent, and afterwards the Lessor surrendred the Copy-hold Land to the use of Collins and his Heirs: and at another time granted by Deed the Reversion of the Free-hold Lands to Collins in Fee, and Harding at∣torned: and afterwards, for the Rent behind, Collins brought an Action of Debt for the whole Rent: And it was objected, That the reservation of the Rent was an entire Contract; and, by the Act of the Lessee, the same

cannot be apportion••d: and therefore if one d••mise 3 Acres, rendring 3 s. Rent, and afterwards bargains and sells the reversion 〈◊〉〈◊〉 one Acre, the whole Rent is gone, because the Contract is entire, &c. Also the Lessee by that shall be subject to two Feal••••es, where he was sub∣ject but to one before.

To these Points, it was answered and Resolved, That the Contract was not entire, but that the same by Act of the Lessor, and Consent of the Lessee, might be divided and severed; for the Rent is incident to the Reversion, and the Reversion is severable, and by consequence the Rent also: for accessorium sequitur naturam su•• princip••lis. And as to the two Fealties, to that the Lessee shall be sub∣ject, though the Rent shall be extinct; for Feal••y is by necessity of Law incident to the Reversion; but the Rent shall be divided, pro rata portionis, and so it was adjudg∣ed.

And it was also adjudged, That though Collins come to the Reversion by several Conveyances, and at severall times, yet he might b••ing an Action of Debt for the whole Rent, Hill. 43 Eliz. Rot. 243. West and Lassels Case. So Hill. 42 Eliz. Rot. 108. in the Common Pleas, Ewer and Moyl••s Case.

Note, It was adjudged, 19 Eliz. in the Kings-Bench, that where one obtained a Prohibition upon Prescripti∣on, de modo Decimandi, by payment of a sum of money, at a certain day, upon which Issue was take••, and the Ju∣ry found the modus Decimandi by payment of the said sum; but at another day, the Case being well debated; at last, it was Resolved, That no Consultation should be grant∣ed, for though the day of payment may b•• mistaken, yet a Consultation shall not be granted where the Soit••∣tual Court hath not Jurisdiction of the Cause. Taafi ld Chief Baron hath the Report of this Cause.

Mich. 7 Jac. Regis.

In an Ejectione Firmae, he Writ and Declaration were of two parts, of certain Lands in Hetherset and Windham, in the County of Norfolk; and saith, not in two parts, in three parts to be divided: and yet it was good as well in the Declaration as the Writ: for without question the Writ is good, de duabus partibus, generally, and so is the Register. See the 4 E. 3. 162. 2 E. 3. 31. 2 Ass. 1. 10 Ass. 12. 10 E. 3. 511. 11 Ass. 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appears, that by the Intendment and Con∣struction of the Law, when any parts are demanded, without shewing in how many parts the whole is divided, that there remains but one part undivided. But when any Demand is of other parts in other form, there he ought to shew the same specially. And according to this dif∣ference, it was resolved in Jordan's Case in the Kings-Bench; and accordingly Judgment was given this Term in the Caseat Bar.

Mich. 7 Jac. Regis; In the Common-Pleas,

Muttoa's Case.

An Action upon the Case was brought against Mutton, for calling the Plaintiff Sorce and Inchanter, who plead∣ed Not Guilty; and it was found against to the Damage of six pence. And it was holden by the whole Court in the Common-Pleas, that no Action lyes for the laid words: for Sortilegus est qui per sortes futura praenunciat. Inchantry is vordis aut rebus adjunctis aliquid praeter na∣turam moliri. See 45 Ed. 3. 17. One was taken in Southwark, with the Head and Visage of a dead man, and with

a Book of Sorcery in his Mayl; and he was brought in∣to the Kings-Bench before Knevet Justice, but no Indict∣ment was framed against him; for which the Clerks made him swear never after to commit Sorcery, and he was sent to Prison; and the Head and Book were burn'd at Tuthil at the Prisoners charges.

The antient Law was, as by Britton appears, that who were attainted of Sorcery were burned; but the Law at this day is, they shall onely be fined and imprisoned. So if one call another Witch, an Action will not lye: But if one say, She is a Witch, and hath bewitched such a one to death, an Action upon the Case lyes, if in truth the party be dead. Conjuration, in the Stat. 5 Eliz. cap. 16. is ta∣ken for Invocation of any evil and wicked Spirits, and the same by that Act is made Felony: But Witchcraft, In∣chantment, Charms, or Sorcery, is not Felony, if not by them any person be killed or dyeth.

The first Statute made against Conjuration, Witchcraft, &c. was the Act 33 H. 8. c. 8. and by it they were Felony in certain Cases special; but that was repealed by the 1 Ed. 6. c. 12.

Mich. 7 Jae. Regis. In the Court of Wards,

Sir Allen Percy's Case.

Sir John Fitz, and Bridget his Wife, being Tenants for life, of a Tenement called Ramshams, the remainder to Sir John Fitz in Tail, the remainder to Bridget in Tail, the reversion to Sir John and his Heirs: Sir John, and Bridget his Wife, by Indenture demised the said Tene∣ment to William Sprey for divers years yet to come (ex∣cept all Trees of Timber, Oakes and Ashes, and liberty to carry them away) rendring Rent. And afterwards Sir John dyed, having Issue Mary his Daughter, now Wife of Sir Allen Percy Knight; and afterwards the

said William Sprey demised the same Tenement to Sir Al∣len for 7 years. The Question was, Whether Sir Allen having the immediate Inheritance in right of his Wife, expectant upon the Estate for the life of Bridget; and also having the Possession of the said Demise, might cut down the Timber Trees, Oakes, and Ashes? And it was ob∣jected, he might well do it: for it was Resolved in San∣ders Case, in the 5th Part of my Reports, That if Lessee for years or life, assigns over his term or Estate to ano∣ther, excepting the Mines or the Trees, &c. that the Ex∣ception is void. But it was answered and Resolved, by the two Chief Justices, and the Chief Baron, that in the Case at Bar, the Exception was good without question; because he who hath the Inheritance, joyns in the Lease with the Lessee for life. And it was further Resolved; That if Tenant for life Leaseth for years, excepting the Timber Trees, the same is lawfully and wisely done; for otherwise, if the Lessee or Assignee cut down the Trees, the Tenant for Life should be punished in Wast, and should not have any remedy against the Lessee for years. But when Tenant for life upon his Lease excepteth the Trees, if they be cut down by the Lessor, the Lessee or Assignee shall have an Action of Trespass; Quare vi & armis, and shall recover Damages according to his loss, And this Case is not like the Case of Sanders; for there the Lessee assigned over his whole Interest, and therefore could not except the Mines, Trees, &c. But when Tenant for life leases for years, except the Timber Trees, the same remaineth yet annexed to his Free-hold, and he may command the Lessee to take them for necessary Repara∣tions of his Houses. And in the said Case of Sanders, a Judgment is cited between Foster and Miles Plain∣tiffs, and Spencer and Bourd Defendants; That where Les∣see for years assigns over his Term, except the Trees, that Wast in such Case shall be brought against the As∣signee: But in this Case, without question, Wast lyeth against Tenant for life, and so there is a difference.

Mich. 7 Jac. Regis. In the Court of Wards;

Hulme's Case.

The King (in Right of his Dutchy of Lancaster) Lord; Richard Hulms (seized of the Mannor of Male, in the County of Lancaster, holden of the King as of his Dutchy by Knights Service) Mesne, and Robert Male (seized of Lands in Male, holden of the Mesne, as of his said Mannor by Knights Service) Tenant: Richard Hulme dyed; after whose death 31 H. 8. it was found, that he dyed seized of the said Mesnalty; and that the same descended to Ed∣ward his Son and Heir within Age, and found the Te∣nure aforesaid, &c. And during nonag••, Robert Male dyed seized of the said Tenancy peravail, and that the same descended to Richard his Son and Meir (as was found by Office 25 H. 2.) within age; and that the said Tenancy was holden of the King, as of his said Dutchy, by Knights Service; whereas in truth the same was hol∣den of Edward Hulme, then in Ward of the King, as of his Mesnalty, for which the King seized the Ward of the Heir of the Tenant. And afterwards, Anno quarto Jacobi Ro∣gis nunc, after the death of Richard Male, the lineal Heir of Robert Male, by another Office it was found, that Richard dyed seized of the Tenancy, and held the same of the King, as of his Dutchy, &c. his Heir within age: Whereupon Richard Hulme, Cozen and Heir of the said Richard Hulme, preferred a Bill to be admitted, to traverse the Office found 4 Jac. Regis. And the Question was, Whether the Office found 35 H. 8. be any Estoppel to the said Hulme? or if that the said Hulme should be first driven to Tra∣verse that.

And it was objected, That he ought first to traverse the Office of 35 H. 8. as in the Case 26 E. 65. And that the first Office shall stand as long as the same remaines in force.

To which it was Answered and Resolved, by the two Chief Justices, and Chief Baron, and Court of Wards; That the finding of an Office is not any Estoppel, for that is but an Inquest of Office, and the party grieved shall have a Traverse to it: But when an Office is found falsly, that Land is holden of the King by Knights Ser∣vice in capite, or of the King himself in Socage, if the Heir fue••h a general Livery, it is holden 46 Ed. 3. 12. by Mowbray and Persey, that he shall not after adde, that the Land is not holden of the King: But that is not any E∣stoppel to the Heir himself, and shall not conclude his Heir: for so saith Mowbray himself expresly, 44 Ass. pl. 35. See 1 H. 4. 6. b. So 33 H. 6. 7. And there is no Book that saith, that the Estoppel shall endure longer than his life; but that is to be intended of a general Li∣very; but a special Livery shall not conclude one. And if a Jury find falsly in a Tenure of the King, the Lord; of whom the Land is holden, may traverse that Office. Or if Land be holden of the King in Socage, &c. the Heir may traverse the last Office; for by that he is grieved, and he shall not be driven to traverse the first Of∣fice. And when the Father sues Livery and dyes, the Conclusion is executed, and past, as is aforesaid.

And note, there is a special Livery, but that proceeds of the King's Grace, and is not the Suit of the Heir; and the King may grant it either at full age, before aetate pro∣banda, or to the Heir within age, as appears 21 E. 3. 40. And then is general, and shall not comprehend any Te∣nure, as the several Livery doth; and therefore it is not any Estoppel without question: See the 33 H. 8. cap. 22. 23 Eliz. Dyer 177.

It was also Resolved in this Case, that the Office of 35 H. 8. was not traversable; for his own Traverse shall prove, that the King had cause to have Wardship by reason of Ward. And when the King comes to the Pos∣session by a false Office, or otherwise, if it appears the

King have any other Right to have the Land there, none shall traverse the Office or Title of the King; because the Judgment in the Traverse is, Ideo consideratum est, quod manus Domini R••gis amoveantur, &c. See 4 H. 4. fol. 33. in the Earl of Kents Case, &c.

Mich. 7 Jacobi Regis.

Note, The Priviledge, Order, or Custom of Parlia∣ment, either of the Upper-House, or House of Commons, belongs to the Determination of the Court of Parlia∣ment; and this appeareth by two notable Presidents:

1. The one at the Parliament holden in the 27 H. 6. There was a Controversie moved in the Upper-House, between the Earles of A••undel and Devonshire, for their Seats, Places, and Pre-eminences of the same to be had in the King's Presence, as well in Parliament, as in Coun∣cels, and elsewhere: The King, by the Advice of Lords Spiritual and Temporal, committed the same to certain Lords of Parliament, who not having leisure to examine the same, by the said Lords Advice, referred it to the Judges of the Land, to hear, see, and examine the Title, &c. and to report what they conceive herein. The Judges reported as followeth: That this matter (viz. of Ho∣nour and Pre-eminency between the two Earles, Lords of Parliament) was a matter of Parliament, and belonged to the King and his Lords in Parliament to be decided: Yet being so commanded, they shewed what they found upon Examination, and their Opinions thereon.

Another Parliament, 31 H. 6. 6th of March begun, and after some continuance, was prorogued to the 14 of February; and afterwards in Michaelmas Term, the same 31 H. 6. Thomas Thorpe, Speaker of the Commons House, was condemned in the Exchequer, in 1000 l. Damages, at the Duke of Buckingham's Suit, for a Trespass done to

him. The 14th of Feb. the Commons m••ved in the Upper-House, that their Speaker might be set at liberty, to exercise his Place, &c. The Lords refer it to the Judges, and Fort••scue and Prisoit, the two Chief Justices, in the Name of all the Judges, answer'd, That they ought not to consider this Question, &c. but it belongeth to the Lords of the Parliament, and not to the Justices. But as to their Proceedings in the Lower-Courts, in such Cases, they deliver'd their Opinions. See 12 E. 4. 2.

Hill. 7 Jac. Regis. In Cam. St••ll.

Heyward and Sir John Whitbrook's Case.

In the Case between Hyward and Sir John Whitbrook, in the Star-Chamber, the Defendant was convicted of di∣vers Misdemeanours, and Fine and Imprisonment impo∣sed on him, and Damages to the Plaintiff. And it was moved, that a special Process might be made out of that Court, to levy the said Damages, upon the Lands and Goods of the said Defendant. And it was referred to the two Chief Justices, whether any such Process might be made; who this Term moved the Case to the Chief Baron, and the rest of the Judges and Barons; and it was unanimously by them all Resolved, That no such Process could or ought to be made, neither for the Damages, nor for the Costs given to the Plaintiff, the Court having no such power, but onely to keep the Defendant in Prison till he pay them. For, for a Fine due to the King, they can make no Process to levy it; but they estreat it into the Exchequer, which hath power by Law to write forth Pro∣cess, &c. But if a man be convict in the Star-Chamber for Forgery, upon the Stat. 5 Eliz. In that Case, for the double Costs and Damages, an English Writ shall be made, directed to the Sheriff, &c. reciting the Convicti∣on, and Statute for levying the said Costs and Damages,

&c. and to bring the money into Star-Chamber, and the Writ shall be sealed with the Great Seal, and the Teste of the King. The like Resolution was in Langdale's Case in that Court.

Hill. 7 Jac. Regis. In the Common-Pleas,

Morse and Webb's Case.

In a Replevin brought by John Morse, against Robert Webb, of the taking of two Oxen the last day of Novemb. 3 Jac. regis nunc, in a place called the Downfield in Lud∣dington, in the County of Worcester; The Defendant, as Bayliff to William Sherington Gent. made Conuzance, be∣cause the place where, is an Acre of Land, which is the Freehold of the said William Sherrington, and for Da∣mage feasants, &c. In Bar of which Avowry, the Plain∣tiff said, That the said Acre of Land is parcel of Down∣field, and that he himself, at the time and before the ta∣king &c. was, and is yet seized of two Yard-Land, with the Appurtenances, in Luddington; and that he, and all those whose Estate he hath in the said 2 Yard-Land, time out of mind, &c. have used to have Common of Pasture, per totam contentam, of the said Place called the Downfield; whereof &c. for 4 Beasts called Rother-Beasts, and two Be••sts called Horse-Beasts, and for 60 Sheep, at certain times in the Year, &c. And that he put in the said two Oxen to use his Common, &c. And the Defendant main∣tained his Avowry, and traversed the Prescription, upon which the Parties were at Issue, and the Jury found a special Verdict: That before the taking one Richard Morse, Father of the said John Morse now Plaintiff, whose Heir he is, was seized of the said two Yard-Land, and had Common of Pasture, &c. as is before alleadged, and so seized the said Richard Morse, 20 Eliz. demised to William Thomas, and John Fisher, divers parcels of the said

two Yard-Land; to which &c. viz. the four Butts of Arable, with the Common and Inter-Common to the same belonging, for 400 years: By force whereof, the said William Thomas, and John Fisher, entred &c. so seized dyed: whereby the Possession and Reversion of the said two Yard-Land descended to John Morse now Plaintiff. And if upon the whole Matter John Morse now hath, and at the time of the taking, &c. had Common of Pasture, &c. for &c. as to the said two Acres of Land, with the Appurtenances, in Law or not, the Jury pray the Advice of the Court.

Note, This Plea began Trin. 5 Jac. Rot. 1405. and up∣on Argument at the Bar and Bench,

1. It was Resolved, by the whole Court, That it ought to be found against the Defendant, who had tra∣versed the Prescription: For though all the two Yard-Lands had been demised for years, yet the Prescription made by the Plaintiff is true: But if he would take ad∣vantage of the matter in Law, he ought (confessing the Common) to have pleaded the said Lease; but when he traverseth the Prescription, he cannot give the same in Evidence.

2. Resolved, That if the said Lease had been plead∣ed, that the Common, during the Lease for years, is not suspended or discharged; for each of them sh••ll have Common rateable, and in such manner, that the Land in which &c. shall not be surcharged.

3. Resolved, That Common appendant to Land, is as much as to say for Cattel leuant and couchant upon the Land, in which &c.

4. There is no difference, when the Prescription is for Cattel leuant and couchant, and for a certain numb••r of Cattel leuant and couchant: But when the Prescrip∣tion is for Common appurtenant to Land, there a certain number of the Cattel ought to be expressed, which are intended by the Law to be leuant and couchant.

Hill. 7 Jac. Regis. In the Common-Pleas;

Hughes and Crowther's Case.

In a Replevin between Robert Hughes Plaintiff, and Richard Crowther Defendant, which began Trin. 6. Jac. Rot, 2220. The Case was, Charles Fox was seized of 6 Acres of Meadow in Bedston, in the County of Salop, in F••••, and 10 Octob. 9 Eliz. leased the same to Charles Hibbens, and Arthur Hibbens, for 60 years, if the said Charles and Ar∣thur should so long live, and afterwards Charles dyed; and if the Lease determine by his death, was the Question. And it was adjudged, That by his death, the Lease was determined: For the life of a man is meer collaterall unto the Estate for years; otherwise, if a Lease be made to for the Lives of J. S. and J. N. See Brudnel's Case in the 5th Part of my Reports: which Case was affirmed for good Law by the whole Court.

Pasch. 8 Jac. Regis. In Communi Banco;

Heydon and Smith's Case.

Richard Heydon brought an Action of Trespass against Michael Smith, and others, of breaking his Close called the Moor in Ugley, in the County of Essex, the 25 day of June, 5 Jac. Et quandam arborem suam ad valentiam 40 s. nuper crescen. succiderunt: The Defendants said, that the Close, and at the time of the Trespass, was the Free∣hold of Si•• John Leventhrop Knight, &c. and that the said Oak was a Timber-Tree of 30 years growth and more, and justifies the cutting down of the Tree by his Com∣mand: The Plaintiff replyes, and saith, That the said Close, and a House, and 28 Acres of Land in ugley, are

Copy-hold, and parcel of the Mannor of Ugley, &c. Of which Mannor, Edward Leventhrop Esq; Father of Sir John Leventhrop, was seized in Fee, and granted the said House, Lands, and Close, to the said Richard▪ Heydon, and his Heirs, by the Rod, at the Will of the Lord, accord∣ing to the Custome of the said Mannor; and that within the Mannor there is such a Custome, Quod quilibet te∣neres Customar, ejusdem Manerii sibi & haeredibus suis ad voluntat. Dom. &c. a toto tempore supradicto usus fuit ad ejus libitum amputare ramos ••mnimodum arborum, called Pollingers, or Husbords, super terris & tenement, suis Cu∣stomar. crescen. pro ligno combustibili, &c. and also, to cut down and take all manner of Trees called Pollingers and Husbords, and all other Timber Trees, &c. for reparati∣on of their Houses, and also for Plough-boot and Cart∣boot; and that all the Trees, &c. hitherto growing up∣on, &c. were not sufficient for the necessary uses afore∣said; And that the said Richard Heydon, from the time of the said Grant, had preserved, &c. all Treas, &c. grow∣i••g upon the said Lands to him granted: and that after the said Edward Leventhrops death, the Mannor descended to the said Sir John; and that at the time of the Tres∣pass, the aforesaid Messuage of the said Richard Heydon, was in decay, &c. upon which the Defendant demurred in Law.

The Case was often argued at Bar; and now this Term it was argued at the Bench by the Justices, and therein these Points were resolved.

1. That the first part of the Custom was absurd and repugnant, but it extends not to the Case; for the last part of the Custom, which concerns the cutting down of the Trees, concerns the Point in question; and so the first part of the Custom is not material. And when it was objected, that the pleading that the Messuage of the Plaintiff was in decay, was too general, as appears by the

Book, 10 Ed. 4. 3. To that it was answered by Cook Chief ••ustice, That the said Book proved the pleading in the Case at Bar was certain enough; and therewith agrees 7 H. 6. 38. 34 H. 6. 17.

2. It was Resolved, That in this Case, without que∣stion, there needs not to alleadge more certainty; for the Copyholder doth not here take it according to the Cu∣stom; but the Lord of the Mannor cuts it down, and preventeth the Copyholder of his benefit; and therefore he needeth not to shew any decay at all, but onely for in∣creasing of Damages: for the Lord does the wrong, when he cuts down the Tree which should serve for Re∣parations.

3. It was Resolved, That of Common-Right, as a thing incident to the Grant, the Copyholder may take House-bote, Hedge-bote, and Plough-bote, upon his Co∣py-hold, Quia concesso uno, conceduntur omnia sine quibus id consistere non potest: And with this agrees, 9 H. 4. Wast 59. But the same may be restrained by Cu∣stome.

4. It was Resolved, That the Lord cannot take all the Timber-Trees, but he ought to have sufficient for Reparation of the Customary Houses, and for Plough-bote, &c. for otherwise great Depopulation will follow. And it is to be understood, that Bote being on old Saxon Word, hath two significations.

First, compensatio criminis, as Frithbote signifies to be discharged, for giving amends for breach ••f the Peace; Manhote, to be discharged of amends for the death of a man.

And secondly, for Reparation; as Bridgebote, Burgh∣bote, Castlebote, Parkbote, &c. And it is to be known, that Bote and Estovers are all one. And Estover is de∣rived of the French Word, Estover, i. e. fovere, i. e. to keep warm, cherish, &c. And there are four kinds of Estovers, viz.

First, Arandi. Secondly, Ardendi. Thirdly, Con∣struendi. And fourthly, Claudendi, viz. Ploughbote, Fire∣bote, Housebote, and Hedgebote.

5. It was Resolved, That the Copyholder shall have a general Action of Trespass against his Lord, Quare clau∣sum fregit & arborem suam succidit: For Custome hath fixed it to his Estate against his Lord. And the Copy∣holder, in this Case, hath as great an Interest in the Timber Trees, as he hath in his Messuage which he holds by Copy. And if the Lord break or destroy the House, without question the Copyholder shall have an Action of Trespass against his Lord, Quare domum fregit; and by the same Reason for the Timber-Trees which are an∣nexed to the Land, and which he may, for Reparati∣on of his Messuage, or else it cannot stand. See Trin. 40 Eliz. Rot. 37. in B. R. between Stebbing and Grose∣nor. See Taylor's Case, in the Fourth Part of my Re∣ports; and see 5 H. 4. 2. 2 H. 4. 12. 2 E. 4. 15. 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. 11 H. 4. 23. 21 H. 7. 14. b. acc. 35 H. 6. 24. 30 H. 6. Tresp. 10. &c. 21 H. 7. 15. 11 H. 4. 23. See Fitz. Trespass. ultimo in the Abridgement. And af∣terwards, the same Term, Judgment was given on the principal Case for the Plaintiff.

Pasch. 8 Jacobi. In Communi Ranco.

The Parishioners of St. Alphage in Canterbury, by Cu∣stome ought to choose the Parish-Clerk, whom they chose accordingly: The Parson, by colour of a new Canon, made at the Convocation in the Year of the King that now is (which is not of force to take away any Custome) drew the Clark before Dr. New∣man,

Officiall of the Arch-Bishop of Canterbury, to de∣prive him, upon the Point of right Election, and for other Causes: And upon that, it was moved at the Bar, to have a Prohibition: And upon hearing of Dr. Newman, and himself, and his Councel, a Prohibition was granted by the whole Court; because the Party chosen is a meer Temporal Man, And the means of choosing him, viz. the Custome is also meerly Temporal: So as the Offi∣cial cannot deprive him; but, upon occasion, the Parishi∣oners may displace him. And this Office is like that of a Church-Warden, who though they be chosen for two years; yet, for cause, they may displace them: as is held in 26 H. 8. 5. And though the Execution of the Office, concerneth Divine Service, yet the Office it self is meer Temporal. See 3 E. 3. Annuity 30. 18 E. 3. 27. And it is to be known, that the deprivation of a man of a Temporal Office or Place, is a Temporal Thing. Up∣on which no Appeal lyes by the 25 H. 8. but an As∣size, as in 4 Eliz. Dyer 209. And therewith agrees the Book, 8 Ass. Sirases Case. But if a Dean of a Cathedral Church, be deprived before the Commissio∣ners of the King, he may appeal to the Delegates with∣in the said Act, 25 H. 8. For a Deanery is a Spiritual Promotion, and not Temporal: And before that Act, in such Case, the Appeal was to Rome immediate∣ly.

Mich. 5 Jacobi Regis. In Banco Regis.

Prichard and Hawkin's Case.

John Prichard brought an Action upon the Case, a∣gainst Robert Hawkins, for Slanderous Words publish'd the last Day of August, 3. Jacob. Viz. That Prich∣ard, which serves Mistriss Shelley, did murder John Adam's Child (Quandam Isabellam Adams modo de∣funct. filia cujusdam Johannis Adams de &c. innuen∣do:) Upon which a Writ of Errour was brought in the Exchequer-Chamber, upon a Judgment given for Prichard in the Kings-Bench; and the Judgment was re∣versed in Easter Term, 7 Jac. because it doth not ap∣pear, that Isabel was dead at the time of speaking the words; for tunc defunct. ought to have bin in stead of modo defunct.

Pasch. 8 Jac. In Banco Regis;

Dison and Bestney's Case.

Humphry Dyson said of Nicholas Bestney, a Councellor at Law of Grays-Inne; Thou a Barrester? Thou art no Bar∣rester; Thou art a Barretor, Thou wert put from the Bar, and darest not shew thy self there: Thou study the Law? thou hast as much Wit as a Daw. Upon Not Guilty pleaded, the Jury found for the Plaintiff, and gave 23 l. Damages; upon which Judgment was given: and upon Writ of Er∣rour, in the Exchequer-Chamber, the Judgment was af∣firmed.

Pasch. 8 Jac. Regis. In Banco Regis;

Smith and Hill's Case.

Noah Smith brought an Action of Assault and Battery, against Walter Hill in the Kings-Bench, which began Pasch. 7 Jac. Rot. 175. Upon Not Guilty pleaded, a Verdict and Judgment for the Plaintiff, and 107 l. given for Dama∣ges and Costs. In a Writ of Errour in the Exchequer Chamber, the Errour was assigned in the Ve: Fa: which was certified by Writ of Certiorari; and, upon this Writ, no Return was made upon the Back of the Writ, which is called Returnum Album. And for that Cause, this Ea∣ster Term, the Judgment was reversed.

Trin. 7 Jac. Regis. In Cur. Wardorum.

It was found by Writ of Diem clausit extremum, after Roger Westcots death, that the said Roger, the day that he dyed, was seized of and in the moiety of the Mannor of Trewalliard, in his Demesne as of Fee, and so dyed seized; and that the moiety of the said Mannor 19 E. 3. was holden of the then Prince, as of his Castle of Trematon, parcel of his Dutchy of Cornwall by Knight-Service; as appears by a certain Exemplification of Trematon for the said Prince, made 9 Martii, 19 E. 3. And the Words of the Extent were, Willielmus de Torr tenet duo feoda et dimid. Milit. apud Picke Strickles∣tombe & Trewalliard per servitium militare & reddit inde per annum 8 d.

And it was Resolved by the two Chief Justices, and Chief Baron, That the Office, concerning the Tenure, was insufficient and void: for the Verdict of a Jury ought to be full and direct, and not with a prout patet:

for now the force of the Verdict lyes upon the Extent•• which if it be false, he who is grieved shall have no re∣medy by any Traverse: for they have not found the Te∣nure indefinite, which may be Traversed but with a prout patet, which makes the Office in that Point insufficient. And upon that a melius inquirendum shall issue▪ And here∣with agrees F. N. B. 255.

FINIS.