a report of a judgement give in the king bench in Hillary term in the  seventeenth year of the reign of queen Elizabeth in a bill of attachment upon  a prohibition sue by William Sobi for himself and the queen against John  molins parson of the church of ThaidonGarnon in the county of Essex for sue he  in courtchristian for the tithe of the branch above twenty year old grow upon  great tree call hornbeam of the age of twenty year and more and the record be  enter in Hillary term Elizabeth rot and be as follow Essex declaration same  precedent raze Entr b be it remember that otherwise videlicet in the term of  saint Michael in the that and that year of the reign of the lady Elizabeth now  queen of England before the same lady the queen at Westminster come William  Sobi of ThaidonGarnon otherwise garnish in the county of Essex who as well for  the lady the queen as for himself prosecute by Richard best his attorney and  bring here into the court of the say lady the queen then there his certain  bill against John molins rector of the parochialchurch of ThaidonGarnon  otherwise garnish aforesaid in the custody of the marshal c of a plea of  trespass and contempt against those who prosecute in the courtchristian  contrary to the royal prohibition to the contrary thereof to they first direct  and deliver and there be pledge of prosecute videlicet John do and Richard roe  which say bill follow in these word videlicet Essex videlicet William Sobi of  ThaidonGarnon otherwise garnish in the county of Essex who prosecute as well  for the lad the queen as for himself complain of John molins rector of the  parochialchurch of ThaidonGarnon otherwise garnish aforesaid in the custody of  the marshal of the Marshalsea of the lady the queen before the queen herself  for this to wit whereas Plowden in a statute make in a parliament of Lord  Edward late king of England the three from the Conquest in the that year of  his reign hold among other thing it be ordain that tithe shall not be give of  great tree of the growth of year and more nevertheless the aforesaid John not  ignorant of the premise but contrive he the aforesaid William contrary to the  due form of the law of the realm of England and contrary to the tenor and  effect of the statute aforesaid undue to aggrieve oppress and fatigue he the  say William in the court Christian before the reverend and excellent man John  Hammond doctor of law of the consistory court of the bishop of London official  lawful constitute the that day of April in the that year of the reign of the  lady the queen now at ThaidonGarnon otherwise garnish aforesaid of and for the  withdraw of tithe of the branch call lop of certain great tree in a certain  place call Ginespark within the parish of ThaidonGarnon otherwise garnish  aforesaid and the bind limit and place titheable of the same parish late grow  and by he the say William late cut and fall down have draw in plea crafty and  subtlety libel against the same William in the courtchristian aforesaid for  the withdraw of the tithe of cartload of combustible wood call the lop of tree  in and of a certain wood call Ginespark grow arise and happen within the  aforesaid parish of ThaidonGarnon otherwise garnish where in truth the  aforesaid tree by the aforesaid William cut down from which the branch  aforesaid come and the branch aforesaid in form aforesaid cut off be of the  growth of year and more and the same John he the say William by the officer of  the Court Christian afore Plowden er p say on that occasion to be cite and  before the aforesaid judge spiritual in the say courtchristian to appear and  to the same John of and for the withdraw of the tithe aforesaid of the branch  of great tree aforesaid to answer have unjust compel and that plea in the same  courtchristian then and there have prosecute and he the say William to make  payment to the same John for the tithe of the branch of the say great tree by  the definite sentence of the say courtchristian with all his may have  endeavour and contrive in contempt of the say lady the queen now against the  form of the statute aforesaid and to the damage of he the say William Sobi  pound and therefore as well for the lady the queen as for himself he produce  the suit c plea and now at this day videlicet Saturday next after the octave  of saint Hillary in this same term until which day the aforesaid John have  leave to imparl to the bill aforesaid and then to answer c before the lady the  queen at Westminster come as well the aforesaid William by his attorney  aforesaid as the aforesaid John by William stamp his attorney and the same  John defend the force and injury when c all contempt and whatever c and say  that he have not prosecute in the courtchristian aforesaid after the royal  prohibition to he therein direct in manner and form as the aforesaid William  Sobi above against he complain see die pl and of this be put himself upon the  country and the afore aid William likewise but for obtain the writ of the lady  the queen of consultation in this behalf the same John say that the branch  call lop of tree for the tithe of which branch he the same John the say  William in the courtchristian aforesaid draw in plea be the branch of tree  call hornbeampollengertrees grow in the aforesaid place call Ginespark within  the parish of ThaidonGarnon otherwise garnish aforesaid and that the aforesaid  tree upon which the branch aforesaid grow be top and lop before any of the  branch aforesaid for the tithe of which he the same John molins draw in plea  the say William Sobi of the tree aforesaid grow and because the aforesaid  William Sobi the same tithe of the branch aforesaid withdraw he the same John  then be rector of the parochial church aforesaid the say William in the  courtchristian aforesaid before the prohibition aforesaid in form aforesaid  thereof direct and deliver for the withdraw of the tithe of the say branch  draw in plea as it be well lawful for he to do and this he be ready to verify  wherefore he pray judgement and the writ of the lady the queen of consultation  in this behalf to be grant to he c plaintiff demurrer and the aforesaid  William Sobi say that by any thing by the aforesaid John molins above by plead  allege the same John the writ of the lady the queen of consultation by no mean  ought to have because he say that the plea aforesaid by the say John in manner  and form aforesaid above by plead plead and the matter in the same contain be  insufficient in law to obtain the writ of the say lady the queen of  consultation to which he the same William have no necessity nor be b that the  law of the land in anywise bind to answer wherefore for want of a sufficient  answer in this behalf he the same William Sobi pray judgement and his damage  aforesaid by the occasion aforesaid to be adjudge to he c joinder in demurrer  and the aforesaid John molins say that the plea aforesaid by he the say John  in manner and form aforesaid above by plead plead and the matter in the same  contain be good and sufficient in law to obtain the aforesaid writ of the say  lady the queen of consultation which say plea and the matter in the same  contain he the same John be ready to verify and prove as the court c and  because the aforesaid William Sobi to that plea have not answer nor the same  hitherto in any wise deny he the same John as before pray judgement and the  writ of the say lady the queen of consultation to bb grant to he c and because  the court of the lady the queen here be not yet advice of give their judgement  of and upon the premise day be give to the party aforesaid before the lady the  queen at Westminster until Wednesday next Plowden after eighteen day of easter  to hear their judgement of and upon the premise because the court of the lady  the queen here thereof not yet c and so there be further continuances because  ale court will advice until Hillary term Elizabeth Plowden er p the case hill  term Elizabeth hornbeam pollengers though of the age of year and more be not  such great wood as be intend by the statute of Edward cap for they be not  timber nor serviceable in building but only fit for fuel and therefore if they  be cut down at that or any great age whatever tithe shall be pay for they and  by the same reason tithe shall also be pay for the branch and Toppings of they  though they be of the age of year and more S p wats finish incumb but see the  contrary degge p win pet ld c king Inst where it be say that this case be deny  to be law pasch James in the case of hall and Fittiplace see lev Windham it  appear by the record that the plaintiff complain against the defendant for  that whereas by the statute of Edward cap it be ordain that no tithe shall be  give of great tree of the growth of year and more yet the defendant have draw  he into the courtchristian the that day of April in the that year of the  present queen for withdraw the tithe and branch call Toppings of certain great  tree grow in a place call Ginespark within the parish of ThaidonGarnon and cut  down by the plaintiff where in fact the say tree and also the branch cut down  be of the growth of year and more and to this the defendant have plead in bar  that the branch call lop of tree for the tithe whereof he sue be branch of  tree call hornbeampollengers grow in the say place call Ginespark within the  say parish and that the say tree upon which the say branch grow be top and lop  before any of the branch for which the tithe be demand grow and therefore that  he the defendant be parson at the time of cut they down draw the plaintiff  into suit for the tithe as it be lawful for he to do and upon this they  demurrer in law and the matter be argue at large at the bar by Atkinson on the  one side and by Anderson on the other side and bell a apprentice be also of  counsel in the case and he speak to the matter the same day with the other  counsel after their argument on both side and it be say against the defendant  that he ought not to have tithe here because the tree be old tree above the  age of year in which case they be a inheritance and for cut down tree above  the age of year a man shall have a action of waste and shall say therein that  the termor have cut they down to his disherison and if a man have a  inheritance in the tree and they themselves be a inheritance from thence it  follow that no tithe shall be pay of they for tithe be Payable of the increase  of the inheritance as of hay apple and such like which be chattel but not of  that which be a inheritance in itself as tree above the age of year be and  this be prove by the say statute of Edward cap which ordain that touch tithe  of great wood of the age of year or of great age a prohibition in such case  shall be grant u on attachment as have be use before this time which word as  have be use before this lime show we what the commonlaw be and that at the  commonlaw tithe be not Payable for great wood before the say statute so that  the statute be make in a Inst degge a confirmation of the commonlaw b h Edward  b Fitzherbert attachment sur prohibition bro   b b and to this purpose be cite  the opinion of Belknap in Edward in the case of a attachment upon a  prohibition for a suit in the spiritual court for the tithe of great tree  where he say I it never be see that tithe be demand of great tree nor of  timber which say of his be within five year of the make of the say statute of  Edward so that be who live in the time before the Act be make testify that  there never be a instance before the Act where tithe have be pay of such great  tree and the reason thereof be because they be a inheritance of themselves and  as tithe shall not be pay of the tree themselves so shall not they be pay of  the branch which come of the Toppings and toppings of the great tree for if  the tree itself which be the principal be excuse from pay tithe so shall the  branch thereof which follow the degree of the principal be also excuse and  especial in this case because the branch be of the age of year and more which  Plowden er p age make they to be account great tree themselves and for these  reason sit be pray that the defendant may be convict of the contempt and the  justice do not argue the matter open but at last they agree among themselves  that tithe be due to the defendant in this case and they grant he a  consultation and because they do not open declare the reason of their  judgement afterward inquire they of Wray chief justice of England who tell I  that the reason upon which he and his companion give the judgement be because  the tree be of a base nature and be not timber nor can be of any service in  building for they can in their nature endure long but they be only fit for  fuel and other trifle use and therefore if the hornbeam themselves have be cut  down tithe shall have be pay for they and by the same reason they shall be pay  for the bow and branch of they for the branch which be of the age of year and  more shall be of the same nature with the tree out of which they spring and  grow and of no other nature c see Inst   b roll Abr pl wats finish incumb  finch c for if the tree itself be privilege from tithe so shall the sprout  above year of age which grow from it be privilege as the sprout of that age of  oak and ash and such like shall be exempt from the payment of tithe as well as  the oak or ash itself shall for he say that a branch above year of age of a  oak or ash or the like may be of service in building and therefore it shall be  exempt from tithe as well as the principal tree shall but hornbeam shall pay  tithe though they be of the age of or year as hasels or sallow and the like  shall do and the great wood specify in the say statute be to be intend of wood  which consist of tree of value d Inst wats finish incumb degge Danv Abr pl in  notorious facts d as of oak and ash and elm and such like but not of e see the  book above cite at the head of the case e hornbeam f S p resolve m James c b  roll Abr pl cro I pl but wats finish incumb say that peradventure the scarcity  of other timber and the custom of the country to put these sort of tree to the  use of good timber may free they be year growth or more from the payment of  tithe Noy pinner v Spencer f sallow hasels maple and the like which in all age  ought to pay tithe and so shall the branch which sprout from they of what age  soever the same be and all this he say to I and for this reason they grant the  consultation as he say and the judgement and consultation after diverse  continuances be as follow Plowden the judgement at which day before the lady  the queen at Westminster come the party aforesaid by their atorneys aforesaid  whereupon all and singular the premise be see and by the court of the say lady  the queen here more full understand and mature deliberation be thereupon have  for that it seem to the court of the say lady the queen here that the plea of  the aforesaid John molins above by plead plead and the matter in the same  contain be good and sufficient in law to preclude the say William Sobi from  have his action aforesaid against the same John and to obtain the writ of the  lady the queen of consultation to the same John it be consider judgement that  the aforesaid William take nothing by his bill aforesaid but for his false  claim therein be in mercy c and the writ of the lady the queen of consultation  to the same John in this behalf be grant c and the writ of consultation be  thus Elizabeth by the grace of God of England c to the reverend and excellent  man John Hammond doctor of law official of the consistory court of the bishop  of London lawful constitute greeting have show unto we John molins rector of  the parochial church of ThaidonGarnon otherwise garnish in the county of Essex  that whereas he in the court Christian before you have implead William Sobi of  ThaidonGarnon otherwise garnish aforesaid of this that the same William the  tithe of cartload of combustible wood call lop pings of tree in and of a  certain wood call gines park grow arise and happen within the aforesaid parish  Plowden er p of ThaidonGarnon otherwise garnish and to he the say John molins  in right of the rectory aforesaid belong to the same John molins have refuse  to pay the aforesaid William Sobi late in our court before we suggest that  whereas in a statute make in a parliament of Lord Edward late king of England  the three after the Conquest in the that year of his reign hold among other  thing it be ordain that of great tree of the growth of year and more tithe  shall not be give and thereupon a certain prohibition at the petition of the  aforesaid William to the same William we grant and the same to you cause to be  direct by reason whereof you have delay and yet do delay to proceed in that  cause and because upon examination of the suggestion aforesaid it manifest  appear to we that the suggestion of the aforesaid William in our court before  we as aforesaid be whole contrary to truth we therefore be Willing that what  justice advice in the premise be do to the party aforesaid signify to you that  in the cause aforesaid as far as concern the tithe of the combustible wood  aforesaid call lop of tree before only litigate our royal dignity and the law  and statute of our realm of you be England in that behalf whole hurt you may  lawful proceed and further do what to the jurisdiction ecclesiastical you  shall know to appertain our say prohibition to you before direct to the  contrary in any wise notwithstanding witness c notam bene by the reporterFrom  this record which be agreeable with the common practice at this day the reader  may observe the method of proceed now make use of to attain a consultation in  these case which differ much from the ancient method as I take it and as it  differ much therefrom so it seem to I to be the worse order and form of  proceed in those suit for at this day upon a surmise to have a prohibition it  be usual for he who make the surmise to be bind in a obligation or  recognizance to exhibit a bill of attachment against the party who sue in the  courtchristian and against who the prohibition be award if he against who the  prohibition be award require it which be do to the end that the party who sue  in the courtchristian may be bring into court and answer to the effect of the  surmise which be contain in the body of the bill of attachment and avoid it if  he can either for falsity or for any other matter and thereupon ale party may  join issue or demurrer in law and if upon trial or demurrer the matter passes  for the defendant sue in the courtchristian then he shall have a consultation  direct to the spiritual judge to proceed which grant of a consultation seem to  I to be very strange for in such attachment upon a prohibition the defendant  be not actor in the king court against the plaintiff but be mere a defendant  as other defendant be in personal action or in suit find upon other contempt  and the attachment be sue against he as a arrest a offender who have proceed  in the spiritual court contrary to a prohibition in which case if it be find  or confess that he have do so he ought to be convict of the contempt and be  imprison and fine and if it be find that he have not proceed in the spiritual  court contrary to the prohibition man he ought to have judgement to go without  day but to plead upon the attachment touch ale right of the tithe and if it be  find for the defendant to grant he a consultation as the effect of the  judgement be not as I apprehend consonant to the ancient form and course of  law and to make use of such a circumstance as to have he at who suit the  prohibition be grant bind to exhibit a attachment without any process award  and so to bring he in voluntary where in appearance he be compel involuntary  to answer seem rather to be a confederacy than a due and fair suit and also to  surmise that he have proceed contrary to the prohibition where in fact he have  not be a falsehood and a lie and if he who be bind to exhibit his bill upon a  attachment will not do it when he be require but will forfeit his bind then  the king shall have the forfeiture inasmuch as the bind be usual make to he  and not to the party and then the party have no way to bring he who have the  prohibition into court to plead with he which will be a great defect in ale  law if there be no other mean to bring the party into court and to proceed to  trial upon the matter but there be in the register king l be it which be call  a to know facias quare consultation non to withhold to go away post  prohibition which writ the party who sue in the spiritual court and be delay  by the prohibition shall have against he who obtain the prohibition Plowden  and this writ recite the surmise and the prohibition grant thereupon which be  to the hurt or disherison of he against who the prohibition be grant and it  require the sheriff to warn ale party to show if he have or know any thing to  say for himself why our Plowden er p say writ of prohibition ought not to be  revoke and our other writ of consultation be award to the aforesaid official  or other judge spiritual c to proceed in the cause aforesaid and to do further  and receive what our court have consider in this behalf and as it may not be  improper to recite the writ it here follow word for word the king to the  sheriff of Essex greeting whereas we late at the prosecution of Thomas and  Roger suggest to we that the chapel of Roger be situate within the manor of  the say Thomas that the say Roger hold the chapel aforesaid of the advowson of  the aforesaid Thomas and that the say Roger and all his predecessor parson of  the chapel aforesaid all tithe as well great as lesser arise from the demesne  land of the say Thomas of the aforesaid manor and of certain his tenement of  the say manor of the gift of the ancestor of the aforesaid Thomas sometime  lord of the same manor from time immemorial have perceive and have and that l  spark parson of the church of Roger claim those tithe to belong to his church  aforesaid the say Thomas and Roger thereof have draw in plea before the  official of the bishop of Lincoln in the courtchristian and for that plea  aforesaid as it be say touch we and our crown and dignity because the advowson  of the chapel aforesaid to we may devolve by reason of wardship or escheat  because also the like tithe in certain our demesne we have bestow and hitherto  have use t bestow and also many great man of our realm of England such tithe  in their demesne have likewise use to bestow we prohibit the same official  that he shall not hold that plea in the courtchristian nor any thing which may  turn out to the derogation of our royal dignity in this behalf attempt by  reason of which prohibition the same official as we have hear have delay and  yet do delay to proceed in that cause to the no small loss and grievance of  the say l and to the manifest danger of the disherison of his church aforesaid  and now on the behalf of the say l it be humble pray unto we that whereas in  the article to the prelacy and clergy of our realm of England late grant it be  contain that in tithe oblation obventions and mortuaries when they be propound  under these name our royal prohibition shall hold no place we will be Willing  to order our say writ of prohibition to be revoke and to award our writ of  consultation to the aforesaid official t proceed in the cause in this behalf  we be Willing that what shall be just be do to the party aforesaid in the  premise command you that you make know to the aforesaid Thomas and Roger that  they be in our chancery on the morrow of the Epiphany of our Lord next come  wheresoever it shall then be to show if they have or know any thing to say for  themselves why our say writ of prohibition ought not be revoke and our other  writ of consultation to be award to the aforesaid official to proceed in the  cause aforesaid and to do further and receive what our court shall consider in  this behalf and have you there the name of those by who you shall the end of  the writ of consultation and he seem to allow of it and as the writ above be  return into the chancery so one may have the like writ in every other court  which grant writ of prohibition returnable before the judge of the same court  and upon every cause sufficient to annul the prohibition and when the  defendant appear upon the writ he may answer to the matter contain in the to  know facias for it comprise the substance of the matter or if it be necessary  to make a declaration the plaintiff may declare upon the writ and the  defendant may answer to the matter which the plaintiff in the to know facias  have object against the surmise upon which the prohibition be find and  thereupon they may proceed in plea and by that mean the right and title of the  tithe may be try and if it be find for the plaintiff in the to know facias  then he shall have judgement to have a consultation accord to the request of  his writ of to know facias and if it be find against the plaintiff then the  prohibition shall stand in force and he shall be bar from have a consultation  and this method of proceed seem to I to be more agreeable with the law than  the other and therefore I will advice the student to put in practice this writ  and to leave the other form make this know to he and this writ witness c the f  n b c this writ Fitzherbert make mention of in year c his naturan narrow  places at the end of the writ of consultation and he seem to allow of it and  as the writ above be return into the chancery so one of many have the like  writ in every court which grant writ of prohibition returnable before the  judge of the same court and upon every cause sufficient to annul the  prohibition and when the defendant appear upon the writ he nay answer to the  matter contain in the to know facias for it comprise the substance of the  matter or if it be necessary to make a declaration the plaintiff may declare  upon the writ and the defendant may answer to the matter which the plaintiff  in the to know facias have object against the surmise upon which the  prohibition be find and thereupon they may proceed in plea and by that mean  the right and title of the tithe may be try and if it be find for the  plaintiff in the to know facias then he shall have judgement to have a  consultation accord to the request of his writ of to know facias and if be be  find against the plaintiff then the prohibition shall stand force and he shall  be bar from have a consultation and this method of proceed seem to I to be  more agreeable with the law than the other and therefore I will advice the  student to put in practice this writ and to leave the other form Plowden er p