Certain select cases in law reported by Sir Edward Coke, Knight, late Lord Chief Justice of England ... ; translated out of a manuscript written with his own hand, never before published ; with two exact tables, the one of the cases, and the other of the principal matters therein contained.

IX. Hill. 6 Jacobi, In the Common Pleas.

Neale and Rowses Case.

AT a Nisi prius in London, before my self this Term, the Case was this: Edward Neale informed upon the Statute of 21 H. 8. cap. 5. which Plea begun Mich. 6 Jac. Rot. 1031. against James Rowse Com∣missary and Officiall within the Archdeaconry of Huntington, within the Dioces of Lincoln, and having probat of Wills and Testaments, &c. within the same Archdeaconry; And that Nicholas Neale, the third year of the Raign of the King that now is, made his Testament and last Will in writing, and made the Plaintiff his Executor, and died possessed of Goods and Chattells to the value of a hundred and fifty pounds: The Defendant then Commissary and Officiall, &c. the twenty third of Febr. 1605. at the Parish of S. Mary Bow, Testament. praedict. probavit, insinuavit, registravit & sigillavit; ac per manus cujus∣dem Thomae Nicke tunc ministri ipsius Jacobi Rowse in ea parte deputat. & authorizat. 14. s. 10 d. pro probatione, insinuatione & registratione Testamenti praedict. de eodem Edwardo, &c. qui tam, &c. Colore Officii sui praedict. ad tunc & ibidem extortive recepit, & habuit contra formam statuti praedict. with this that the said Edward, qui tam, &c. will add, That the writing of the said Testament according to the rate of a peny for every ten Lines of the said Testament, every line thereof contain∣ing

in length ten Inches, non attingebat, to the summe of twelve shillings four pence, according to the form of the Statute aforesaid, &c. The Defendant pleaded Nihil debet, And at the Nisi prius, the E∣vidence of two Witnesses was, That the Plaintiff caused the said Te∣stament which was in Paper, to be ingrossed in Parchment; And the Plaintiff offered both to the said Rowse, the Officiall, to be proved, and he answered, That he would prove it, if his Fees shall be paid to him, And the Plaintiff asked him what were his Fees, and he wrote them in a paper, which amounted to fourteen shillings ten pence for the Probat, insinuation, Registring, and sealing: And thereupon the Plaintiff layed upon the Table twenty shillings, and desired him to take as much as was due to him, and all that was in the house of the Officiall; But he would receive nothing there, but appointed the Plaintiff to come in Court, where he would receive his Fees, and accordingly the Plaintiff came to him in Court, and prayed to have the said Will proved; And the Defendant required the said Nicke his Minister, to take of him for the probation, insinuation, registring, and sealing, fourteen shillings ten pence, and thereupon he put the Seale of his Office to the said Parchment ingrossed, which the Plaintiff brought with him, and which he delivered to the Defendant. And it was objected. That this Case was out of the said Statute, for thereby as to this purpose, it is provided, viz. And where the Goods of the Te∣stator, &c. amount above the value of forty pounds, That then the Bi∣shop, nor Ordinary by him or themselves, nor any of his or their Re∣gisters, Scribes, Praysers, Summoners, Apparators, or any other their Ministers, for the probation, insinuation, and approbation of any Testament or Testaments, &c. for the registring, sealing, writing, praysing, making of Inventories, making Acquittances, Fines, or a∣ny thing concerning the same Probate of Testaments, shall take or cause to be taken of any person or persons, but only four shillings, and not above, whereof to the Bishop, ordinary, &c. for him and his Mini∣sters two shillings six pence, and not above, and two shillings six pence to the Scribe for Registring of the same, &c. And it was objected by the Councell of the Defendant, that the Defendant did not take the fourteen shillings ten pence for the probation, insinuation, registring, or sealing of the Testament, for no Probat was written upon the Te∣stament it self, nor any Seale put to it, but the Testament was in∣grossed in Parchment, and the Probat and Seale put to the Tran∣script ingrossed, and not to the Testament it self, and so out of the Statute; and the Statute extends only, when the Probat and Seale is put to the Testament it self, and for the ingrossing of it after the Pro∣bate, no certain Fee is provided by the Statute; But for the Regi∣string of it after it is proved, there is an expresse Fee in the Statute: But I conceived that the said taking of the fourteen shillings ten pence in the Case at Bar, was directly against the Statute. For the Act is in the Negative, and if the Executor requireth the Testament to be in∣grossed in Parchment, he ought to agree with him who he requireth to do it, as he may: But the Ordinary, Officiall, &c. ought not to exact any Fee for the same of the party as a thing due to him, for divers Causes:

1. Because the words of the Act are expressed, for the Probation, &c. and for the registring, sealing, writing, praysing, making of Invento∣ries, Fines, giving of Acquittances, &c. which word (writing) ex∣tends expresly to this Case.

2. The words are, Or any thing concerning the same Probate, and when the Seal and Probate is put to the Transcript, the same without question concerns the Probate, for the Probat is not put to any wri∣ting but only to that, therefore the same concerns the Probate.

3. Such a Construction should make the Act idle and vain, for if the Ordinary, Officiall, &c. might take as much as he pleaseth for the in∣grossing done by his Ministers as a Fee due to him, all the purview of the Statute which is penned so precisely concerning persons, scil. Bi∣shops, Ordinaries, and all persons who have power to prove Wills and Testaments, Registers, Scribes, Summoners, Apparations, or any other the Ministers, as for the thing it self, scil. the probation, insinua∣tion, approbation, registring, sealing, writing, praysing, making of Inventories, Fines, giving of Acquittances, or any other thing con∣cerning the same, should be all in vain, by that evasion of Transcri∣bing of it, as well against the expresse Letter of the Act as the inten∣tion and moving of it: Also the Statute saith five shillings, and not a∣bove, so as the manner of precise penning of it excludes all nice evasi∣ons: And the Act ought to be expounded to suppresse Extortion, which is a great affliction, and impoverishing of the poor Subjects.

4. As this Case is, he annexeth the Probate and Seale to the Tran∣script ingrossed, which the Plaintiff brought with him and offered to the Defendant; so as the Case at Bar was without question, And ge∣nerally the Ordinary, Officiall, &c. cannot exact or take any Fee for any thing which concerns the Probate of a Will or Testament, but that which the Statute limits: And afterwards the Iury found for the Plaintiff; and of such opinion was Walmesley, Warberton, Daniel, and Foster Iustices, the next Term in all things, But upon exception in Arrest of Iudgment for not pursuing of the Act, in the Informati∣on; Iudgment is not yet given, &c.

Notes

• Extortion, Stat. 21 H. 8. cap. 5.