| 1482.120 |
1482 |
Common Pleas |
Trespass for breaking close and taking cartloads of wood and reeds. |
Trespas |
| Mich. |
22 |
Edw. 4 |
3 |
23b-24b |
Bridges, Thomas Sjt Brigges (for P)
Sulyard, John Sjt Suliard (for D)
Bridges, Thomas Sjt Brigges
Catesby, John JCP
Choke, Richard JCP
Bryan, Thomas CJCP Brian
Nele, Richard JCP
Catesby, John JCP
Choke, Richard JCP
Sulyard, John Sjt Suliard (mentioned)
Sulyard, John Sjt Suliard
Catesby, John JCP
Pygot, Richard Sjt Pigot
Townshend, Roger Sjt
Tremayle, Thomas Sjt Tremaile
Catesby, John JCP
Bryan, Thomas CJCP Brian
Pygot, Richard Sjt Pigot
Catesby, John JCP
Pygot, Richard Sjt Pigot (mentioned)
the Court |
S. |
parson of |
|
|
| Brooke Jurisdiction 79, Office del court 17, Colour 62, Propertie 35 |
38 (Hen. 6?), good colour as to tithes, perhaps perhaps 1460.001 = Hil. 38 Hen. 6, pl. 1, fol. 19b-21a
40 Edw. 3, fol. 20 accord
50 Edw. 3, fol. 20 (thrice)
11 Hen. 7, fol. 18
3 Hen. 4, fol. 18
10 Hen. 4, fol. 12, 13
11 Edw. 3, Lib. Ass. pl. 21
21 Edw. 4, fol. 29
20 Hen. 6, fol. 18 (twice)
38 Hen. 6, fol. 21 (thrice)
14 Hen. 4, fol. 17 (twice)
35 Hen. 6, fol. 39 (twice)
40 Edw. 3, fol. 28 |
|
| En briefe de Transgressioun, Brigges pur le plaintiff counta coment le defendant debrusa son close & ses biens, &c. s. ii. |
89 |
Plaintiff counted that defendant broke plaintiff's close and (took) two cartloads of underwood and one cartload of reeds (arundes).
Defendant pleaded as to breaking close that plaintiff was parson of a vill where (the trespass was supposed), that defendant was vicar of the same parish, that the place where trespass was supposed was a close containing in itself 20 acres, which was part of defendant's glebe land, and of which defendant was seised as of part of defendant's glebe land, by force of which defendant entered, and as to the two cartloads of underwood, defendant vicar pleaded that defendant vicar and all his predecessors had, from time immemorial, used to have tithes of underwood severed from the tenth part, that in fact those two cartloads were severed from the nine parts, that plaintiff parson had come and had claimed those two cartloads as part of plaintiff's tithes, that defendant vicar had taken them as defendant's tithes, the which matter defendant was ready to aver, and as to the reeds (arundes), defendant pleaded the same plea.
Plaintiff parson replied that this colour was insufficient, because defendant vicar had acknowledged no possession in plaintiff parson, thus no property nor possession (in plaintiff parson).
Catesby JCP said that the colour was good enough.
Choke JCP and Bryan CJCP agreed.
Nele JCP was not in Court.
Choke JCP asked defendant's counsel why defendant had not concluded (with a plea) to (oust) the jurisdiction of the Court, because it (the plea) was between a parson and a vicar for tithes.
Defendant told Choke JCP that defendant had imparled since the last Term, and defendant understood that defendant could not plead to the jurisdiction after imparlment.
Catesby JCP said that even though defendant vicar could not plead to the jurisdiction, the Court would do according to their discretion, because it appeared by the pleading that (the action) was outside the Court's jurisdiction.
Sjt Pygot and Sjt Townshend said that the Court would have jurisdiction.
Sjt Tremayle said that the Court did not have jurisdiction.
Catesby JCP and Bryan CJCP said that the Court did not have jurisdiction.
Then the Court was ousted of jurisdiction.
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Sjt Bridges (for P): charets de subbois & un charet de arundes (= reeds)
Sjt Sulyard (for D): mesme cestuy defendant & touts ses predecessors ont use de temps d' ont, &c. memorie, &c. d' aver dismes de subbois severes de le x. parties, come de la barbitel (= lambs) & de lain (= wool) & auters dismes en mesme le paroche
Sjt Bridges (for P): Moy semble que cest color n' est pas sufficient, car il n' ad confesse nul possession en nous, issint nul property ne possession
Catesby JCP: La color est assets bon, car maintenant pur le claime le property fuit en le plaintiff, & auxi la possession est en luy coment quel n' eux carria s' il fist claime, &c.
Sjt Pygot: & jeo note un diversitie lou un private issue est prise perenter Parson & Parson, & quant un issue est prise de droit de dismes, car si un issue soit prise perenter parson & parson en cel forme le defendant dit le lieu lou, &c. fuit deins son paroche, & l' auter dit que est deins son paroch en cel case, il serra trie en la court temporal; en cest case, entant que un private issue est prise, s. quel ad continue
Catesby JCP: car le prescripcion al co-en ley est lxxx. ans, &c.; Et per case le ley de l' espiritual Court est, que s' il ad continue en possession de cest pur space de xx. ans ou xxx. ans, quel est bon title de prescripcion, donques si cel prescripcion serroit trie icy si les laie gents poient trover quel & ses predecessors ne ont continue per space de lxxx. ans ou pluis, donques ils voillont dire quel & ses predecessors ne ont continueus de temps, &c. lou s' il fuit troie en la Court espirituel, ils voillont aver trove son title bonn per la continuance que ad este continue, & issint per cel trial il serroit a grand mischief lou s' il fuit trie en le spirituel Court, il doit aver ceux, & issint per le mischief moy semble que cel Court serra hors de jurisdiccion
Sjt Pygot: come en case si un Vicar soit endow, & l' endowment est trope petit, & puis le Vicar est augment per l' assent de Patron & del Ordinary d' un porcion per composition, &c. de pluis quel avoit adevant, en cel case moy semble si en apres parcel de cel augmentacion vient en debate, quel serra trie en cel Court
Catesby JCP: Et quant tiel augmentacion est fait, un act esperituel est fait de mesme le augmentacion, le quel act est un perfit jugement en l' esperituel Court, donques quant il est un chose judicial en l' esperituel Court , & cest pur estre defete en cel Court per matter en fait .s. per verdit cest ne poit estre per nul voy |
prescription at common law is 80 years
Catesby JCP: immediately (maintenant) by the claim (plaintiff parson's claim of tithes) the property was in the plaintiff, and also the possession was in him (plaintiff parson) even though he did not carry them if he made a claim; see (view) in 38 (Hen. 6) adjudged that it was good colour to say that the plaintiff came to claim this as his tithes, and the defendant would not allow (suffer) him, which was the same trespass (perhaps 1460.001 = Hil. 38 Hen. 6, pl. 1, fol. 19b-21a),
query
Choke JCP asked Sjt Sulyard (for D) why he did not conclude (by pleading) to (oust) the jurisdiction of the Court, because it (the action) was between parson and vicar for tithes
Sjt Sulyard (for D): because, Sir, we have imparled since the last Term, and as I understand we cannot plead to the jurisdiction after the imparlment, because by the imparlment we have affirmed the jurisdiction
Catesby JCP: even though you (defendant) cannot plead to the jurisdiction, we (the Court) want to do according to our discretion, because it appears already (devant) by pleading (per plede) that it (the action) is outside of (our) jurisdiction, even though you (defendant) have passed the (opportunity to take) advantage of this, yet we do not want to hold a plea of this
Sjt Pygot: it seems to me that the Court will not be out of (hors de) jurisdiction, and I note a distinction where (lou) a private issue is taken between parson and parson, and when (quant) an issue is taken (as a matter) of right of tithes, because if an issue be taken between parson and parson in this form (that) the defendant pleads that the place where (the trepass was supposed) was within his (defendant's) parish, and the other (plaintiff parson) replies that it was within his parish, in this case it will be tried in the temporal court; and also if an abbot or another person of the church claim these sheaves (garbes), etc. or another (thing), etc. as a portion, etc. in this case it will be tried in the temporal court, so it seems to me in this case, inasmuch as a private issue is taken, that is, whether he had continued, and his predecessor out of time immemorial, etc. or not, so it seems to me that this Court will have jurisdiction, and the other not, etc.
Sjt Townshend: it seems to me that the Court will have jurisdiction, and not the spiritual court, because the issue that is joined is not whether the underwood be in right of the parson or the vicar, but the issue is whether the vicar and his predecessor had continued from time immemorial, etc. so I understand that when the Court is lawfully seised (of the plea), and the lay folk (les laie gents, the jury) can have notice (of the issue) as well as the folk of holy Church, whether he and his predecessor had continued to have, etc. then it is more reasonable that it (the issue) ought to be tried here than elsewhere (aillours), as in a common case, if in a Quare impedit the defendant pleads that the church was not vacant for 6 months before, ,etc. and the plaintiff replied (that the church was) vacant, etc. so that 'vacant or not' is to be tried, it will be tried by a temporal court, but if they are in trial of (the issue) full or not full (plein & nient pleine), or of ability (ablenes) of the clerk, etc. this will be tried by the bishop (by ecclesiastical court), because this is spiritual, so here, if the issue was taken from (de) the one party that the tithes were of right of his church, and the other (party) pleaded (dit) of right of his church, then this Court will be out (hors) of jurisdiction, and the other (court) would have in (?), because the issue is not taken on this, but on the continuance, that is, of the prescription, so it seems to me that the Court will not be out (hors) of jurisdiction, etc.
Sjt Tremayle: it seems to me the contrary, because even if it be so that there is nothing to be tried except the prescription, yet it seems to me that the Court will be out (hors) of jurisdiction, because if I knew (scie) to prove that the prescription be spiritual, then it seems to me that the court spiritual will have jurisdiction, and that the prescription is spiritual, I will prove thusly, every prescription has a commencement, and if it had a commencement, and this commencement be spiritual, then the continuance (continuation), that is, the prescritpion of the same will be spiritual, because the continuance will not make this temporal, so when the vicar, who first claimed those to be his tithes, does an act, that is, he claims it, which was spiritual, 'ergo' consequently (per consequens) the continuance by his successor, who claimed will not make this temporal, but spiritual, of which this Court does not have jurisdiction, but the spiritual court, so it seems to me that this Court will be out (of jurisdiction), etc.
Catesby JCP: it seems that the court will be out (hors) of jurisdiction, and to what is said that the right of tithes is not on trial, but the prescription, Sir, to this I say that notwithstanding this it was entirely unreasonable and against all right to try here in this Court, because perhaps (per case) if it would be tried here, it could be that it would be found against him who had made himself this title, and yet of right he ought to have this, because the prescription at common law is 80 years (?), etc.; and perhaps (per case) the law of the spiritual court (canon law) is that if he had continued in possession of this (tithe) for the space of 20 years or 30 years, that it is good title of prescription, so if this prescription be tried here if the lay folk (jury) can find that he and his predecessors had not continued for the space of 80 years or more, then they would say (in their verdict) that he and his predecessors had not continued from time immemorial, etc. where if it was tried in the spiritual court, they would have found his title good by the continuance that had been continued, and so by this trial there would be grave mischief where if it was tried in the spiritual court, he ought to have those (tithes), and so for the mischief it seems to me that this Court will be out of jurisdiction
Bryan CJCP (in agreement): and Sir, as I understand, the issue that is taken that the defendant who is the vicar and all his predecessors had used to have the tithes of underwood in such place severed from the nine parts from time immemorial, and I would grant well Sjt Pygot's case, but if they are not to traverse whether the place, etc. was within the plaintiff's parish or the defendant's, that in this case the Court will have jurisdiction to try this, adn yet in this case this Court will not have it (jurisdiction), because in the other case the issue that is taken is not directly (directment) to the right of the tithes, but is inclusive of the right, that is, if it be found in the parish of the one, then it is his right, and vice versa, so inclusively the right of tithes is in dispute; and so it is in a writ of Annuity brought by one parson against another or against an abbot, etc. and the plaintiff (parson) counts how the (defendant) abbot's predecessor by the deed sealed with the covent's seal granted, etc., if the defendant traversed the deed, as to plead 'not the deed (of defendant abbot and covent), etc. this will be tried in the Court; and so if in a writ of Annuity brought by one parson against another, or against an abbot, and counted by prescriptionn, etc. it will be tried in this Court, and the cause is in all those cases because the issue is not taken directly on the right (de le droit), but by this issue the right will be tried inclusively (inclusive), that is, by him by whom it is tried (?), so in such cases where inclusively by the issue found he will be obliged in those cases this Court will have jurisdiction, but in this case the issue is that he and his predecessors in right of the same church had used to have the tenth part severed from the nine parts, of underwood in such place of which, etc. so by this title the right of the tithes is directly in dispute, and so it seems to me that the Court will be out (hors) of jurisdiction
Sjt Pygot: Sir, for another reason (cause) the Court will have jurisdiction, and that it (the issue) will be tried here, as in case if a vicar (vicarage) be endowed, and the endowment is too small (trope petit), and then the vicar (vicarage) is augmented by the assent of the patron and of the ordinary of one portion by composition, etc. of more than he had before, in this case it seems to me if afterwards part of the augmentation comes into dispute (debate), that it will be tried in this Court,
so Catesby JCP: this case cannot be law (ne poit estre lex) for this reason (cause), because there is no augmentation unless it be by the parson, by the patron, and by the ordinary and by their assent; and also it will not be done, unless for insuficiency of the endowment beforehand to the vicarage (al Vicare); and when such augmentation is made, a spiritual act is done for the same augmentation, which act is a perfect judgment in the spiritual court, so when there is a judicial thing in the spiritual court, and this is to be defeated in this Court by a matter in fact, that is, by a verdict this cannot be (done) by any means (voy), and so it is of Sjt Pygot's case, but of the portion claimed from a parson it cannot be tried in this Court |
Count
Breaking Close
Close
Goods
Cartload
Underwood
Reed (arundes)
Parson
Vill
Vicar
Parish
Place
Supposition
Contents
Containing
Acre
Parcel
Glebe
Glebe Land
Seisin
Force
Entry
Manner
Demand
Judgment
Action
Maintenance Of Action
Predecessor
Usage (use)
Time Immemorial
Memory
Tithes (dismes)
Severance
Tenth Part
Lamb (barbitel)
Wool (lain)
In Fact
Nine Parts
Coming
Claiming
Taking (prist)
Time
Matter
Averment
Pleading
Plea
Seeming
Colour
Insufficiency
Confession
Acknowledgement
Admission
Possession
Property
Sufficiency (assets)
Good Enough
Good Colour
Immediacy (maintenant)
Carrying
Agreement (concordat)
(Absence)
Out Of Court
Sight (view)
Adjudging
Sufferance
Allowance (suffrer)
Query
Conclusion (concluda)
Jurisdiction
Plea To The Jurisdiction
Imparlment
Term
Since The Last Term
Understanding (entende)
Pleading To The Jurisdiction
Affirmation
Affirmance
Discretion
Discretion Of The Court
Appearance
Out Of Jurisdiction (hors)
Passing
Advantage
Losing Advantage
Holding Plea
Note
Distinction (diversitie)
Issue
Private Issue
Taking Issue
Between Parson And Parson
Right
Right Of Tithes
Form
Within His Parish
Trial
Court Temporal
Temporal Court
Abbot
Person
Person Of The Church
Sheaf (garbes)
Portion
Inasmuch As
Continuation
Running (courge)
Spiritual Court
Joinder
Joinder Of Issue
Lawfulness (loyalment)
Seisin Of Plea
Lay Folk (laie gents)
Folk (gents)
Notice
Having Notice
Folk of Holy Church
Holy Church
Reasonableness
More Reasonable
Elsewhere (aillours)
Common Case
Quare Impedit
Vacancy (voide)
Six Months
Voidance
Void Plea
On Trial
Fullness (pleine)
Not ful
Ability (ablenes)
Clerk
Ability Of Clerk
Bishop
Trial By The Bishop
Spiritual Thing
Party
Right Of His Church
In (eins)
Continuance
Prescription
Contrary
Nothing
Knowledge (scie)
Proof
Spiritual Prescription
Commencement
Spiritual Commencement
Continuance
Spiritual Continuance
Temporal Continuance
Act
Spiritual Act
Ergo
Consequence
Per Consequens
Successor
Notwithstanding
Unreasonable
Against Reason
Against Right
Against All Right
Perhaps (per case)
Finding
Title
Making Title
At Common Law
80 Years
Eighty Years
Law Of Spiritual Court
Canon Law
Ecclesiastical Law
Church Law
Space
Twenty Years
Thirty Years
Good Title
Good Title Of Prescription
Jury (les laie gents)
Mischief
Grave Mischief
Grant
Granting Well
Traverse
Place (lieu)
Directly
Direct Issue
Inclusiveness
Inclusively
Right Of Tithes
Dispute (debate)
In Dispute
Annuity
Writ Of Annuity
Deed
Seal
Sealed Deed
Covent
Convent
Covent Seal
Not His Deed
Direct Dispute
Vicarage
Endowment
Endowing
Too Small (trope petit)
Smallness
Augmentation
Assent
Patron
Ordinary
Composition
Law (lex)
Insufficiency Of Endowment
Perfection
Perfect Judgment
Spiritual Judgment
Judicial
Judicial Thing
Defeat (defete)
Matter In Fact
Verdict
Means (voy)
No Way
Ouster
Ouster From Jurisdiction
Note
Accord |
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