STAC 5/H40/29r

From Waalt

Les reportes del cases in Camera Stellata, 1593 to 1609 from the original ms. of John Hawarde edited by William Paley Baildon Published 1894 Pages 91-93

In Camera SteIlata, coram Consillo ibidem. Veneris, 11 Novembris, 1597, Elizab. 39, termino Mich

Another cause of hearing in which Lawrence Hyde, Counsellor of the Middle Temple, and Henry Hide, his brother, were plaintiffs, George Corrielle, clerk, John Bailie, and Robert Bailie and others, defendants, for maintenance, champerty and riot.

The Earl of Pembroke, (p.92) patron of a church 'presentative,' and the Ordinary, in 3 E[dward] VI, enfeoffed the plaintiff's ancestor in fee of the said parsonage, as of a parsonage impropriate; and the plaintiffs, and those whose estate they have enjoyed the same accordingly up to the 36th [year] of Elizabeth now Queen. The defendants, with malice, and on pretence of a lease made for the trial of the title, maintained suits against the plaintiffs, etc., and disbursed money.

But the riot was not proved. And it was certified by Justice Wamsloe that the Court could proceed on the bill either under the statute or at common law. But because on the whole matter some points of law arose, and the matter was not apparently proved, the Court was divided as to the sentence. The Chief Justices declared this to be maintenance, and [decreed] a forfeiture of the whole value of the land, and two of the defendants to be fined each £100.

Sir John Fortescue, Lord Buckherst, Lord Northe, the Lord Treasurer, the Archbishop and the Lord Keeper, on the contrary, referred this to the common law, since it was not proved directly; but they greatly condemned maintenance; and the Lord Keeper agreed with the two Chief Justices as to the fine of £200 against two of the defendants.

And upon this case were moved divers good matters: By all —That they do not favour impropriations, and that these cannot be made now-a-days but by Parliament, and they were always created by Parliament, by 31 and 32 Hen. VIII. "of dissolutions," and before by other statutes, and by these have now become lay things. Their commencement was before the Conquest by the corruption of Abbats and other men of religion, when noblemen gave land to a small abbey, or founded an abbey or other house of religion, and they had small lands or possessions, the Abbats devised that they could give parsonages before (p.93) presentative, and they took the profits of them, and in this way made them impropriate. But at this day the parson, patron and Ordinary cannot grant the tithes of a parsonage presentative, nor make it impropriate, but they may grant the glebe or charge it imperpetuum.

And on the statute of maintenance, the Judges resolved that it is not material if the title be good or bad, if he has not had possession for one entire year before, or of the reversion or remainder of it, or has [not] taken the rents and profits of it for one entire year before.

See also STAC Hyde